Canada (Attorney General) v. 2431‑9154 Québec Inc.

Canada (Attorney General) v. 2431‑9154 Québec Inc.
Court (s) Database
Federal Court Decisions
Date
2008-08-29
Neutral citation
2008 FC 976
File numbers
T-1544-07
Notes
Reported Decision
Decision Content
Date: 20080829
Docket: T-1544-07
Citation: 2008 FC 976
Ottawa, Ontario, the 29th day of August 2008
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
2431-9154 QUÉBEC INC.
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1] This application, which was filed by the Attorney General of Canada (AGC) acting on behalf of the Minister of Transport (the Minister), is for the judicial review of a first‑level determination made on July 24, 2007 by Jean‑Marc Fortier, a member of the Transportation Appeal Tribunal of Canada (the Tribunal). Hearing an appeal by 2431‑9154 Québec Inc. (Sept‑Îles Aviation or the respondent) from the Minister’s decision on May 8, 2007 to cancel two operator certificates, a decision made under paragraph 7.1(1)(c) of the Aeronautics Act (the Act), which gives the Minister the power to cancel an aviation document if “the Minister is of the opinion that the public interest and . . . the aviation record of the holder of the document or of any principal of the holder . . . warrant it,” the Tribunal determined the following:
· under subsection 7.1(7) of the Act, the Minister’s decision of May 8, 2007 cancelling flight training unit operator certificate no. 8304 (the certificate or the FTUOC), which had been issued to Sept‑Îles Aviation in March 2000, was referred back to the Minister for reconsideration; and
· under subsection 7.1(8) of the Act, the Tribunal stayed the Minister’s decision to cancel the certificate until the reconsideration was concluded, since it was satisfied that granting a stay would not constitute a threat to aviation safety.
[2] In my opinion, it is important to specify the limited scope of the certificate cancelled by the Minister. That certificate authorized the respondent to operate a flight training unit (the flight school) to train aircraft pilots; it did not authorize Sept‑Îles Aviation to operate a commercial air service for the transportation of passengers or goods. Indeed, Sept‑Îles Aviation had operated such a service under another certificate (air operator certificate no. 9260) issued on October 24, 1990, but the Minister cancelled that certificate as well on May 8, 2007, and the Minister’s decision to do so was confirmed by Mr. Fortier in a separate determination on October 2, 2007.
[3] The Minister relied on the same 30 grounds to justify this cancellation of both certificates on the same day. In both cases, the Minister made his decision under paragraph 7.1(1)(c) of the Act. The Tribunal, reviewing the two cancellation decisions, held a single hearing at Sept‑Îles on May 29 and 30, 2007, at which it received common evidence from the Minister and Sept‑Îles Aviation.
[4] I should note as well that, on August 31, 2007, Justice Blais, then of the Federal Court and now a member of the Federal Court of Appeal, dismissed the AGC’s application seeking to have the stay of the cancellation of the flight school certificate lifted until this application for judicial review was heard. Justice Blais concluded that there was a serious issue but that the AGC would not suffer irreparable harm if his motion were not granted and that the balance of convenience favoured Sept‑Îles Aviation.
[5] I have reproduced the relevant provisions of the Act and the Transportation Appeal Tribunal of Canada Act (Tribunal Act) in Schedule A.
[6] The AGC argues that the Tribunal made three errors that justify setting aside the impugned determination:
· His first argument is that the Tribunal erred in refusing to consider all the evidence submitted to it. In support of this argument, the AGC alleges that, rather than examining the record of the certificate holder, Sept‑Îles Aviation, and its main principal, Jacques Lévesque, as required by paragraph 7.1(1)(c) of the Act, the Tribunal wrongly focused on the record or offences that related solely to the certificate itself. The Tribunal considered only 10 of the 30 grounds relied on by the Minister in cancelling the operator certificate for the school. The AGC therefore submits that the Tribunal failed to consider all the evidence. The AGC takes this argument further and alleges that treating the cancellation of the two certificates as two separate decisions not only made the Tribunal sever the evidence and fail to consider it as a whole but also led to an absurd result. According to the AGC, it is absurd that Sept‑Îles Aviation can now continue operating its flight school under certificate no. 8304, the Minister’s cancellation of which was stayed by the Tribunal, but must cease its commercial operations because of the cancellation of certificate no. 8260, which the Tribunal confirmed. In the AGC’s opinion, it makes no sense for a company to be required to cease its commercial activities on public interest grounds but at the same time to be authorized to continue training pilots;
· His second ground is that the Tribunal made erroneous findings of fact. According to the AGC, those findings resulted directly from the Tribunal’s failure to consider all the evidence. He argues that the Tribunal’s finding on the seriousness, frequency and repetition of the offences cannot be reasonable or complete because the Tribunal did not analyse all the evidence;
· Finally, the AGC submits that the Tribunal misinterpreted the burden that must be met to cancel a certificate on public interest grounds. He alleges that the Tribunal erred in substituting its discretion on this point for the Minister’s, since its role was only to ensure that the Minister’s decision was reasonable, not to itself consider whether the public interest warranted cancelling the certificate.
[7] Counsel for Sept‑Îles Aviation raised a preliminary issue. In the opinion of this Court, it was a jurisdictional issue that had to be decided before addressing the issues raised by the AGC.
[8] That preliminary issue was whether the application for judicial review filed by the AGC with this Court was appropriate in light of subsection 7.2(1) of the Act. To decide this issue, the Court had to determine, based on the principles for interpreting bilingual legislation, whether the Act authorized the Minister to appeal a first‑level review determination or whether only the person affected by the determination, that is, Sept‑Îles Aviation, could do so. If the Minister could appeal the member’s first‑level determination, the Court had to consider whether the principles laid down in Abbott Laboratories Ltd. v. M.N.R., 2004 FC 140, were satisfied.
[9] The Court therefore decided to hear the parties on the merits but asked them to submit written representations on the preliminary issue to indicate how the Supreme Court of Canada deals with situations in which the English and French versions are contradictory on their face. The written representations were completed on May 1, 2008.
Tribunal’s Determination
[10] I will summarize the essential points of the determination.
[11] First, the Tribunal noted that, on May 8, 2007, the two operator certificates that Transport Canada had issued to Sept‑Îles Aviation were cancelled by the Minister under paragraph 7.1(1)(c) on the same 30 grounds.
[12] Although the Minister’s grounds for cancelling the two certificates were the same in both cases, the Tribunal decided to sever or separate the evidence presented at the hearing. The Tribunal divided up the Minister’s evidence into two categories: one for air transport operations and the other for the flight school. At paragraph 12 of its determination, the Tribunal clearly stated that, to make a determination on the notice of cancellation of the flight school certificate, it would consider only the evidence, grounds and testimony “concerning the flight training unit operations of Sept‑Îles Aviation”. At paragraph 13 of its determination, the Tribunal stated that it would “examine the grounds for cancellation numbered 8 to 13, 17, 18, 21 and 22 to make a determination in this case”. It determined that the other grounds for cancellation would be “considered by the Tribunal in a separate determination that it will make concerning the notice of cancellation of the AOC of Sept‑Îles Aviation”.
[13] The Tribunal considered the following grounds for cancellation in the case relating to the cancellation of the flight school operator certificate that Sept‑Îles Aviation had held since March 2000:
8. On October 30, 2000 2431‑9154 Québec Inc. (Sept-Îles Aviation Enr./Eider Aviation), of which Jacques Lévesque was a principal, did not comply with section 103.03 of the Canadian Aviation Regulations following a fourth request for return of old original operator certificates. Mr. Lévesque finally informed Transport Canada that the certificates had been destroyed.
9. On April 21, 2001, the chief instructor of 2431‑9154 Québec Inc. (Sept‑Îles Aviation Enr./Eider Aviation), Clément Nadeau, resigned as a result of intimidation by Jacques Lévesque. Mr. Nadeau stated that Mr. Lévesque forged his signature to authorize his students’ flights.
10. On October 5, 2001, the chief instructor of 2431‑9154 Québec Inc. (Sept‑Îles Aviation Enr./Eider Aviation), Jacques Lévesque, complied with the request for corrective measures resulting from the inspection of June 15, 2001. These corrective measures had been required since August 27, 2001.
11. On November 1, 2001, 2431‑9154 Québec Inc. (Sept‑Îles Aviation Enr./Eider Aviation), of which Jacques Lévesque was a principal, did not comply with section 103.03 of the Canadian Aviation Regulations following two requests to return the original operator certificate no. 8304.
12. On October 12, 2002, 2431‑9154 Québec Inc. (Eider Aviation), of which Jacques Lévesque was a principal, did not comply with sections 606.02(2) and 606.02(5) of the Canadian Aviation Regulations. It was assessed with a total penalty of $10 000 (Aviation Enforcement file no. 5504‑50955). The penalty was upheld on review, but reduced to $5 000 on appeal (file no. Q‑2942‑41 of the Transportation Appeal Tribunal of Canada). The operator certificate (OC) was suspended for non‑payment then reinstated after payment of the penalty on October 5, 2005. The operator continued operations despite the suspension of its OC, thereby committing a new offence (Aviation Enforcement file no. 5504‑60582).
13. On May 21, 2003, as chief instructor, Jacques Lévesque, did not comply with section 406.22 of the Canadian Aviation Regulations and was assessed a penalty of $500 (Aviation Enforcement file no. 5504‑50956). The decision was reviewed and confirmed by the Transportation Appeal Tribunal of Canada (file no. Q‑2939‑34).
17. On September 27, 2005, 2431‑9154 Québec Inc. (Sept‑Îles Aviation Enr.), of which Jacques Lévesque was a principal, did not comply with section 406.03(1) of the Canadian Aviation Regulations and was assessed a penalty of $5 000 (Aviation Enforcement file no. 5504‑59206). This file was reviewed by the Transportation Appeal Tribunal of Canada on April 23, 2007. Transport Canada is awaiting the determination.
18. On August 24, 2005, 2431‑9154 Québec Inc., of which Jacques Lévesque was a principal, did not comply with section 406.03 of the Canadian Aviation Regulations and was assessed a penalty of $5 000 (Aviation Enforcement file no. 60582). The penalty was not paid within the time limit and the company is now faced with recovery proceedings by Justice Canada.
21. On December 7, 2006, Transport Canada cancelled Jacques Lévesque’s approval as maintenance manager for 2431‑9154 Québec Inc. (Sept‑Îles Aviation Enr.) because he did not fulfill his duties, which included ensuring safe operations.
22. On December 7, 2006, Transport Canada suspended the flight training unit operator certificate of 2431‑9154 Québec Inc. (Sept‑Îles Aviation Enr.) because the company no longer met maintenance certification requirements. The company no longer had anyone in charge of maintenance and the maintenance control system was no longer in compliance with the requirements of the Canadian Aviation Regulations. The suspension was lifted on February 23, 2007, after the company had met the conditions for reinstatement.
[14] In Schedule 2, I have reproduced the grounds for cancellation relied on by the Minister which the Tribunal did not consider in reviewing the cancellation of the flight school certificate but considered solely in the case involving the cancellation of certificate no. 9260 for the operation of the commercial air service.
[15] After setting out the Minister’s grounds that it was going to consider in the case relating to the cancellation of the certificate for the school, the Tribunal summarized the Minister’s evidence in support of each of those grounds. Sept‑Îles Aviation’s evidence was based primarily on the testimony of its president, Jacques Lévesque, and Exhibits R‑2 and R‑3.
[16] In Chapter VI of its determination, the Tribunal set out its assessment of the evidence in support of the Minister’s opinion that the public interest warranted cancelling the certificate owing to the aviation record of the certificate holder and its principal, Mr. Lévesque. The Tribunal stated the following about that evidence:
· It was of the opinion that grounds for cancellation nos. 8 and 11 were administrative in nature and could not alone be used to warrant a notice of cancellation;
· It was not taking ground for cancellation no. 9 into account because no witnesses had been called in support of that ground;
· Ground for cancellation no. 10 was rejected because Mr. Lévesque had indicated to Transport Canada that corrective measures would be taken, the Minister had observed on October 5, 2001 that Sept‑Îles Aviation had complied and “[n]o other offence of this nature has taken place since June 2001”;
· Ground for cancellation no. 13, although significant, had been the subject of a request for review by the Tribunal, which had confirmed the $500 fine assessed. The Tribunal found that no other offence of this nature had occurred since;
· Ground for cancellation no. 17 could not be considered because it was the subject of a request for review before the Tribunal and it would have been inappropriate for the Tribunal to comment on it or take it into consideration in that review hearing for reasons of natural justice.
[17] The only remaining grounds for cancellation were nos. 12 (flying without the required level of insurance), 18 (suspension for non‑payment of penalties) and 21 and 22 (notice of suspension for absence of person responsible for maintenance and non‑compliance with maintenance control system). Those grounds related to offences that had occurred in 2002, 2005 and 2006, respectively. The Tribunal determined as follows:
· Grounds for cancellation nos. 12 and 18 had been settled by payment of significant penalties by Sept‑Îles Aviation and, although they were serious grounds, they did not, on their own, warrant the notice of cancellation of the certificate;
· The most serious grounds for cancellation, nos. 21 and 22, gave cause for concern and had led to the Minister’s decision to suspend the operator certificate for the school. According to the Tribunal, the notice of suspension of December 7, 2006 was clearly warranted for the reasons stated by the Minister during Guy Dufour’s testimony before the Tribunal. According to Member Fortier, Mr. Dufour had thoroughly explained the shortcomings of Sept‑Îles Aviation pertaining to the maintenance manager and the maintenance control system. He wrote: “It is obvious that Mr. Lévesque did not meet his obligations as maintenance manager because he did not fulfill his duties to ensure safe operations.”
[18] The Tribunal rejected Mr. Lévesque’s argument that he had not received any specific training or taken exams to perform the duties of operations manager and maintenance manager. In the Tribunal’s opinion, upon accepting the duties of manager, it became Mr. Lévesque’s responsibility to ensure that his business met the requirements of the Canadian Aviation Regulations (CARs). To do so, he could not rely on Transport Canada’s audits to point out serious shortcomings, especially in terms of maintenance control and meeting the safety standards imposed by the CARs. The Tribunal was of the view that no carrier could operate its business this way and that any holder of an operator certificate issued by the Minister of Transport was responsible for ensuring that the operations and safety standards imposed by the CARs were met at all times.
[19] However, the Tribunal found that another factor had to be considered:
However, the evidence shows that, between December 7, 2006 and February 23, 2007, the applicant cooperated with Transport Canada and was able to meet all of the conditions for reinstatement of its FTUOC to the satisfaction of the representatives of the Minister of Transport. These conditions were respected until May 22, 2007, date on which the cancellation of the FTUOC came into effect. Between February 23, 2007, when the suspension was lifted, and May 22, 2007, the Minister of Transport did not present any evidence that could have warranted a further suspension for serious offences under the applicable regulations, which could have warranted, depending on the circumstances, the issuance of a notice of cancellation. [Emphasis added]
[20] In the final chapter of its reasons, the Tribunal described the content of the public interest raised by the Minister on several occasions to justify cancelling a certificate, namely the public interest in aviation safety. It analysed several recent decisions of the Transportation Appeal Tribunal of Canada, including the one affirmed by the Federal Court of Canada in Bancarz v. Canada (Minister of Transport), [2007] F.C.J. No. 599, a decision by my colleague Justice Phelan. It quoted paragraphs 48 and 49 of that judgment:
48 In these other cases, the number of incidents of infractions was much higher than Bancarz’s; for example, in Jensen v. Canada (Minister of Transport), [1997] C.A.T.D. No. 49, there were 65 contraventions over 30 years; in Spur Aviation Ltd. v. Canada (Minister of Transport), [1997] C.A.T.D. No. 24 (Jensen’s company), there were 100 incidents resulting in cancellation. In Marin v. Canada (Minister of Transport), [1995] C.A.T.D. No. 14, the Minister suspended Mr. Marin’s AME licence on grounds of incompetence based upon 15 major incidents. Despite the finding of incompetence, Marin was given an opportunity to re‑qualify.
49 Other cases such as Poole v. Canada (Minister of Transport), [2000] C.A.T.D. No. 55 and Lockhart v. Canada (Minister of Transport), [1999] C.A.T.D. No. 29, indicate that in this field of regulated activity there must be either numerous incidents or major incidents with clear evidence of wrongdoing to justify suspension or cancellation.
[21] The Tribunal found that, “[w]hen relying on the principle of public interest to suspend or cancel a Canadian aviation document, the Minister must be able to show the occurrence of serious events or of several events with clear evidence establishing that the holder of the Canadian aviation document committed offences under the regulations.”
[22] The Tribunal noted that the Minister had been justified in suspending the flight school operator certificate in December 2006 and had imposed conditions for reinstatement that he found appropriate on Sept‑Îles Aviation, all of which had to be met to his department’s satisfaction. The Tribunal noted that those conditions had been met by the respondent, that Transport Canada managers had declared that they were satisfied with this and that the suspension of the certificate had therefore been lifted on February 23, 2007, which meant that Sept‑Îles Aviation had been authorized to resume its flight school activities.
[23] The Tribunal stated that, three months after reinstatement of its operations, the Minister had notified Sept‑Îles Aviation of the cancellation (and not suspension) of certificate no. 8304 even though the company had not been the subject of any other notice of offence between February 23, 2007 (lifting of the suspension) and May 8, 2007 (date of the notice of cancellation). The Tribunal stated the following: “The absence of new offences during this period had a serious impact on the determination that the Tribunal must make concerning the notice of cancellation of the applicant’s FTUOC and will continue to play an essential role in keeping such an operator certificate in effect.”
[24] The Tribunal concluded as follows:
59 Basing itself on the tests set out by the Federal Court in Bancarz and applying them to this case, the Tribunal is not satisfied that the Minister of Transport has proved on a balance of probabilities that public interest and, in particular, the aviation record of the applicant and of its principal concerning the operation of the flight training unit, warrant the cancellation of the FTUOC. [Emphasis added]
[25] As for the second part of the determination, which was made under subsection 7.1(8) of the Act, which authorizes a member of the Tribunal to grant a stay of the cancellation “if he or she is satisfied that granting a stay would not constitute a threat to aviation safety”, the Minister was opposed to a stay because it would have enabled Sept‑Îles Aviation to resume operating its school. The Minister referred to Mr. Lévesque’s record and the fact that his company was the subject of a notice cancelling its operations as an air carrier. The Minister argued, without more, that the grounds of public interest did not favour the reinstatement of the school’s operations.
[26] The Tribunal rejected the Minister’s arguments:
66 The evidence submitted at the hearing demonstrated that the applicant resumed operation of its flight training unit in February 2007 after the suspension was lifted on its FTUOC, as it had then met all requirements imposed by Transport Canada in that regard and specified in the conditions for reinstatement attached to the notice of suspension.
67 Since resumption of flight training unit operations in February 2007, the evidence also revealed that the applicant continued to comply with the maintenance standards imposed by Transport Canada, and the applicant did not receive any further notice of offence or letter of notification from Transport Canada that might indicate one or more offences under the CARs. Further, the applicant was not involved in any serious incident or accident concerning air safety in the operation of its flight training unit.
Analysis
1. Preliminary Issue
[27] As already noted, the preliminary issue is very simple, namely whether subsection 7.2(1) of the Act gives the Minister a right to appeal to the second level of the Tribunal from a member’s determination under subsection 7.1(7) of the Act, which provides that the member may confirm the Minister’s decision under paragraph 7.1(1)(c) of the Act or refer the decision back to the Minister for reconsideration.
[28] Clearly, there is an obvious contradiction between the English and French versions of the current subsection 7.2(1) of the Act; the two versions are not ambiguous. The English wording of subsection 7.2(1) does not give the Minister a right to appeal a first‑level determination made under subsection 7.1(7) of the Act, while the French version does give the Minister that right. Counsel for Sept‑Îles Aviation agrees with this.
[29] As recently confirmed by the Supreme Court of Canada in R. v. Daoust, [2004] 1 S.C.R. 217, in situations where there is an obvious conflict between the two versions of an enactment, legal authors insist that recourse must be had to the ordinary rules of statutory interpretation, which seek to discover, as counsel for the AGC suggests, [translation] “the meaning of the provision that is in harmony with the purpose and scheme of the Act or simply Parliament’s intention”.
[30] Based on the legislative history of subsection 7.2(1) of the Act since its enactment in 1985, consistency in analysing the Appeal Tribunal’s powers and Bill C‑7 amending the Aeronautics Act, which is now at the third reading stage in the House of Commons, the AGC submits that Parliament’s intention is better reflected in the English version of subsection 7.2(1) of the Act, which has always denied the Minister the right to appeal to three members at the Tribunal’s second level from a determination made under subsection 7.1(7) of the Act. In my opinion, the AGC is correct.
[31] A historical analysis of the wording of subsection 7.2(1) reveals that, before that provision was amended in 2004 under an implementing statute, the English and French versions since 1985 had matched, since neither gave the Minister a right to appeal a determination made under subsection 7.1(7). In 2004, the Public Safety Act, 2002, S.C. 2004, c. 15, amended section 7.2 of the Aeronautics Act to give the Minister, in the French version only, a right to appeal to the second level from a member’s determination under subsection 7.1(7), thus creating complete discordance with the English version, which still reflected the legal situation that had existed since the passage of the Act: the Minister had no such right of appeal.
[32] Moreover, prior to the 2004 amendment, which is the source of the contradiction between the provision’s two versions as regards the extent of the Minister’s right of appeal, the absence of a right of appeal for the Minister was consistently accompanied by a duty to refer the Minister’s decision back to the Minister for reconsideration if the Tribunal found that it could not confirm that decision.
[33] This was the case when the Tribunal was reviewing a decision by the Minister to refuse to issue or amend a Canadian aviation document (subsection 6.72(4) of the Act); a decision by the Minister relating to a person’s designation under section 4.84 of the Act (paragraph 7(7)(a) of the Act); and the decision by the Minister in the case before this Court.
[34] There was also consistency among the Act’s provisions granting the Tribunal the power to substitute its own determination for the Minister’s decision in cases where it did not confirm that decision. When the Tribunal had that power, the Minister was given a right to appeal to three members at the second level. This situation existed where the Tribunal was reviewing a decision by the Minister to suspend or cancel a Canadian aviation document on the grounds that its holder or the owner or operator of any aircraft, airport or other facility in respect of which it was issued had contravened any provision of Part I of the Act (subsection 6.9(1) of the Act) and where it was reviewing a decision to suspend a Canadian aviation document on the grounds that an immediate threat to aviation safety or security existed or was likely to occur as a result of an act or thing that was being done under the authority of the document or that was proposed to be done under the authority of the document (paragraph 7(7)(b) of the Act).
[35] The AGC submits that giving the Minister a right to appeal to the second level in cases where the Minister has the right to reconsider the Minister’s own decision seems illogical.
[36] Finally, the AGC draws the Court’s attention to Bill C‑7, which had its first reading on October 29, 2007. That bill amends subsection 7.2(1) of the Act to make both versions identical. It is the French version that is amended by eliminating the Minister’s right to appeal to the second level of the Appeal Tribunal from a first‑level determination made under subsection 7.1(7).
[37] In my opinion, these three indicia of Parliament’s intention are consistent; the French version of subsection 7.2(1) of the Act that was passed in 2004 resulted from a drafting error.
[38] I therefore find that the AGC’s application for judicial review in this case was the only way open to the Minister to challenge Member Fortier’s determination. Challenging it by way of an application for judicial review is therefore necessary and appropriate.
2. Dunsmuir
[39] The parties filed their memorandums before the Supreme Court of Canada decided in Dunsmuir v. New Brunswick, 2008 SCC 9, to reduce the number of standards for the judicial review of decisions of administrative tribunals from three to two, namely correctness and reasonableness; patent unreasonableness has been included in the reasonableness standard. The purpose of that reform undertaken by the Supreme Court was to simplify things and sort out the tests used in reviewing the decisions of administrative decision makers because, according to Justices Bastarache and LeBel, who wrote the majority reasons, “[t]he recent history of judicial review in Canada has been marked by ebbs and flows of deference, confounding tests and new words for old problems, but no solutions that provide real guidance for litigants, counsel, administrative decision makers or judicial review judges” (paragraph 1). In my opinion, it was from this perspective that Justices Bastarache and LeBel developed and stated certain guidelines to make it easier to apply the reform resulting from Dunsmuir. This was why the majority in Dunsmuir established certain presumptions relating to the scope of the reasonableness and correctness standards of review. Justices Bastarache and LeBel wrote the following at paragraphs 51, 53 and 55:
[51] . . . As we will now demonstrate, questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness while many legal issues attract a standard of correctness. Some legal issues, however, attract the more deferential standard of reasonableness.
. . .
[53] Where the question is one of fact, discretion or policy, deference will usually apply automatically (Mossop, at pp. 599‑600; Dr. Q, at para. 29; Suresh, at paras. 29‑30). We believe that the same standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readily separated.
. . .
[55] A consideration of the following factors will lead to the conclusion that the decision maker should be given deference and a reasonableness test applied:
A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference.
A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance).
The nature of the question of law. A question of law that is of “central importance to the legal system . . . and outside the . . . specialized area of expertise” of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E., at para. 62). On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate. [Emphasis added]
[40] With regard to judicial review on the correctness standard, the two judges stated at paragraph 57 that existing jurisprudence “may be helpful in identifying some of the questions that generally fall to be determined according to the correctness standard”, including:
Questions regarding the division of powers between Parliament and the provinces;
“True” questions of jurisdiction or vires, “where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction” (paragraph 59).
Questions of general law that are “both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise”, “[b]ecause of their impact on the administration of justice”, and questions regarding “jurisdictional lines between two or more competing specialized tribunals” (paragraph 60).
[41] Dunsmuir also defined the parameters of a reasonable decision. At paragraph 47, Justices Bastarache and LeBel answered the following question: “But what is a reasonable decision?”
[47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[42] I note that the concept of “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” was expressed as follows in the French version: “l’appartenance de la décision aux issues possibles acceptables pouvant se justifier au regard des faits et du droit”.
[43] In discussing what constitutes a reasonable decision, the judges writing for the majority elaborated on the concept of deference, “so central to judicial review in administrative law”. They warned that courts may not “be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision‑making process of adjudicative bodies with regard to both the facts and the law.” Deference requires “a respectful attention to the reasons offered or which could be offered in support of a decision” (quoting Professor Dyzenhaus). “In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system” (paragraphs 48 and 49).
3. Standard of Review
[44] In his written memorandum filed before Dunsmuir was decided, counsel for the AGC recommended that the standard of review in this case be that of reasonableness; he reached that conclusion by considering the four factors relevant to the “pragmatic and functional analysis”, which the Supreme Court now refers to simply as the “standard of review analysis”: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue and the expertise of the tribunal.
[45] In Dunsmuir, Justices Bastarache and LeBel made two points about the standard of review analysis. At paragraph 62, they wrote:
[62] In summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. [Emphasis added]
[46] Second, they added: “In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case.”
[47] Prior to Dunsmuir, cases that discussed the standard of review for decisions of the Transportation Appeal Tribunal of Canada leaned toward the reasonableness standard.
[48] In Asselin v. Canada (Minister of Transport), [2000] F.C.J. No. 256, Justice Pinard wrote the following at paragraph 11:
11 Taking into account, therefore, the existence of a privative clause, the expertise of the Appeal Panel, the safety of the public contemplated by the Act and the technical and specialized nature of the Regulations, I am of the view that a standard based on judicial deference is appropriate. However, given that the issue before the Appeal Panel involved not only a question of fact but a question of law pertaining to the interpretation and application of subsection 801.01(2) of the Regulations and par. 2.5 of chapter 1 of standard 821 of the Separation Standards, I believe, as my colleague Gibson J. held in Killen v. Canada (Minister of Transport) (June 8, 1999), T‑2410‑97, in regard to another decision of the same Appeal Panel, that the applicable standard of review is situated somewhere between correctness and patent unreasonableness, that is, it is the reasonableness simpliciter standard.
[49] After Mr. Asselin appealed, the Federal Court of Appeal, [2001] F.C.J. No. 43, expressed complete agreement with Justice Pinard.
[50] The reasonableness standard was applied in Butterfield v. Canada (Attorney General), 2006 FC 894, at paragraph 70, and Air Nunavut Ltd. v. Canada (Minister of Transport), [2001] 1 F.C. 138, at paragraph 47. In Hudgin v. Canada (Minister of Transport), 2002 FCA 102, Justice Evans, at paragraph 7, was prepared to assume, “but without deciding the issue, that the applicable standard in this case is that of unreasonableness”.
[51] Recently, in Skyward Aviation Ltd. v. Canada (Minister of Transport), 2008 FC 325, Justice Snider applied the correctness standard to a decision of an appeal panel of the Tribunal when the question at issue was whether the panel had erred in finding that it did not have jurisdiction to review a notice of suspension. Relying on Nunavut, above, at paragraph 31, my colleague was of the opinion that that question was a question of pure law or statutory interpretation.
[52] When this application for judicial review was heard, counsel for the applicant argued that the Tribunal had erred in law by misinterpreting paragraph 7.1(1)(c) of the Act when it severed 20 of the grounds for cancellation relied on by the Minister in cancelling the training unit operator certificate. Counsel for Sept‑Îles Aviation argues that the reasonableness standard applies.
[53] I am aware of the debate in Dunsmuir over the circumstances in which a question of law may be subject to the reasonableness standard.
[54] In the circumstances, I find that I must proceed with an analysis of the factors making it possible to identify the proper standard of review.
[55] I note the following:
the Transportation Appeal Tribunal of Canada Act contains a privative clause in section 21, but that section applies only to a decision “of an appeal panel of the Tribunal”. As we have determined, the Minister could not appeal to an appeal panel in this case. Accordingly, no privative clause applies to the member’s determination in this case;
the Tribunal has recognized expertise when deciding a request for review or an appeal on the merits; however, questions of law, including statutory interpretation, do not fall squarely within the expertise of the Tribunal (Nunavut, above, at paragraph 47);
the basic question at issue is a question of law;
the Tribunal’s mandate is to give the aviation public the opportunity to appeal administrative decisions that affect licences or impose penalties under the Act (Nunavut, paragraph 21).
[56] Based on all these factors, I conclude that Parliament intended the correctness standard to apply.
[57] For the reasons that follow, however, I find that the outcome would be the same if the standard of review were reasonableness.
4. Discussion
[58] In m