Canadian Union of Public Employees v. Canada (Attorney General)

Canadian Union of Public Employees v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2018-05-16
Neutral citation
2018 FC 518
File numbers
T-1175-15
Decision Content
Date: 20180516
Docket: T-1175-15
Citation: 2018 FC 518
Ottawa, Ontario, May 16, 2018
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
CANADIAN UNION OF
PUBLIC EMPLOYEES
Applicant
and
CANADA (ATTORNEY GENERAL), CANADA (MINISTER OF TRANSPORT),
AIR CANADA, AIR CANADA ROUGE,
AIR TRANSAT, CANADIAN NORTH,
AND SUNWING AIRLINES INC.
Respondents
JUDGMENT AND REASONS
[1] The Applicant, the Canadian Union of Public Employees [CUPE or the Applicant], challenges purported decisions made by the Minister of Transport related to the Regulations Amending the Canadian Aviation Regulations (Part I, VI and VII – Flight Attendants and Emergency Evacuation), SOR/2015-217 [the challenged regulations] and the decision of the Governor in Council to promulgate the challenged regulations. The challenged regulations establish the minimum number of flight attendants required on passenger airplanes in proportion to passenger seats. CUPE, a union which represents over 10,000 flight attendants, argues that the challenged regulations were passed in a manner which was contrary to basic norms of procedural fairness, and in particular, in breach of CUPE’s legitimate expectation to be meaningfully consulted, and should therefore be quashed.
[2] The Respondent, the Attorney General of Canada [AGC] argues that procedural rights do not attach to the legislative process, which includes the making and amendment of regulations. In the alternative, the Respondent argues that the Applicant was not denied any procedural fairness, noting, among other things, that no promises were made to CUPE and that CUPE did participate in the consultation process leading up to the promulgation of the challenged regulations. The Respondents, Air Canada & Air Canada Rouge, Air Transat, and Sunwing Airlines, all of whom operate passenger airlines in Canada, and who are affected by the challenged regulations, support the position of the Attorney General. Canada North is also a Respondent on this application, but did not file submissions.
[3] For the reasons that follow, the Application is dismissed. There is no duty of procedural fairness owed by the Governor in Council in exercising its authority to promulgate regulations. Even if there were such a duty, it was not breached in this case. CUPE cannot establish that it had a legitimate expectation of consultation, nor can it establish that it was denied procedural fairness. CUPE had the opportunity to participate in focussed consultations regarding the challenged regulations and its input was acknowledged.
I. Background
A. General
[4] This Application for Judicial Review focuses on amendments to the Canadian Aviation Regulations, (SOR/96-433) [CARs], made under the Aeronautics Act, RSC 1985, c A2 [Aeronautics Act].
[5] The first regulations addressing the ratio of flight attendants to passengers were enacted in 1996. These required aircraft operated by Canadian airlines with more than 50 seats to have a ratio of one flight attendant for every 40 passengers (the 1:40 ratio). This reflected the on-going policy dating back to at least 1968. Other jurisdictions, including the United States and the European Union, require one flight attendant for every 50 seats (the 1:50 ratio). The 1:50 ratio used in these jurisdictions applies to seats, regardless of whether a passenger is in them. The challenged regulations, enacted on an industry-wide basis in 2015, bring the Canadian regulations in line with other jurisdictions. The challenged regulations permit Canadian airline operators to elect the 1:50 flight attendant-seats ratio, as long as certain safety-related criteria are met. Alternatively, they can choose to maintain the 1:40 ratio. The election is done on an aircraft-by-aircraft basis.
B. The Key Players
[6] The regulation of aeronautics in Canada involves several key players in Government and industry, including:
The Governor in Council has the authority to make regulations under the Aeronautics Act, including the regulations at issue (section 4.9, Aeronautics Act).
The Minister of Transport is responsible for the administration of the Aeronautics Act (section 4.2). Transport Canada is the Minister’s Department.
The Canadian Aviation Regulation Advisory Council (CARAC), with representation from government and industry, is the main consultative body for Transport Canada’s civil aviation rule-making process. CARAC’s prime objective is to assess and recommend potential regulatory changes. The procedure by which Transport Canada conducts consultations with CARAC is set out in the CARAC Charter. It has over 550 members, including CUPE.
CARAC has several committees, including the Civil Aviation Regulatory Committee (CARC). CARC is composed of senior executives in Transport Canada’s civil aviation division. CARC makes recommendations for regulations and amendments to the Minister. CARC also identifies regulatory issues, and considers the recommendations of other CARAC subcommittees.
The Parliamentary Standing Committee on Transport (SCOT), now known as the Standing Committee on Transport, Infrastructure and Communities (SCOTIC), is a committee of Members of Parliament responsible for considering transportation-related issues.
C. The History of the Challenged Regulations
[7] In or around 2000, individual airlines and industry lobbying organizations began advocating for the adoption of the 1:50 ratio. CUPE has consistently been opposed to this change.
[8] In 2000, the Air Transport Industry Association (ATAC), an industry lobbying organization, proposed a change to the ratio. This proposal was reviewed, but ultimately rejected by the CARC due to safety concerns.
[9] In 2002, ATAC submitted a more detailed proposal for the 1:50 ratio. CARC asked Transport Canada to conduct a risk assessment of the proposal. Stakeholders, including CUPE, were consulted. The assessment, completed in 2003, revealed that the 1:40 ratio was safer, but that the 1:50 ratio was acceptable from a safety perspective, provided that certain mitigation measures were implemented.
[10] CARC then directed that Notices of Proposed Amendments (NPAs) be prepared to advise stakeholders that the 1:50 ratio was being considered. This led to further consultation, including with CUPE. CUPE submitted written “dissents” in 2004, opposing the amendments.
[11] Transport Canada submitted its Report setting out the Staff Position and Recommendations (Staff Position) to CARC in November 2004, which noted that the issue needed further study, and that the proposed amendments could not be recommended without the mitigation measures that had been proposed in the 2002 risk assessment.
[12] In March 2005, CARC met to consider the responses to the NPAs, and the Staff Position from Transport Canada. CARC directed that the proposals be forwarded to the Department of Justice for legal drafting.
[13] This decision was communicated to CUPE by letter dated December 9, 2005 from the Chief of Regulatory Affairs at Transport Canada, stating:
The NPAs…were forwarded to the Department of Justice for legal drafting. Once the drafting of the regulations is complete, you will have another opportunity to comment once the proposed rule is pre-published in the Canada Gazette, Part I. In accordance with the CARAC Charter…members will receive a copy as soon as it becomes available.
[14] Transport Canada officials, as well as the Deputy Minister and Minister of Transport, made similar statements before the SCOT between 2005-2006(i.e., that the regulations would not be finalized until draft regulations had been submitted to the SCOT for consideration, and that the regulations would be pre-published in Part I of the Gazette and subject to the resulting consultation process).
[15] On January 23, 2006, as a result of the Canadian General Election, a new Government was elected. On September 22, 2006, the Minister of Transport, Mr Lawrence Cannon, announced in the House of Commons that the proposed amendments to the CARs would not be pursued at that time. (Going forward, this process will be referred to as the “2000-2006 regulatory process”.)
[16] In 2013, WestJet airlines sought and was granted a Ministerial exemption to the 1:40 requirement, which allowed it to operate under the 1:50 ratio. Other airlines began to seek similar exemptions. This eventually led to a further proposal to adopt the 1:50 ratio on an industry-wide basis. Transport Canada recommenced consideration of the proposed regulatory changes, including any necessary mitigation measures.
[17] In February 2014, stakeholders received a Preliminary Issue and Consultation Assessment (PICA) outlining the changes. An NPA was posted online for comments in March 2014, followed by an amended NPA in May 2014, which invited comments up to June 22, 2014. Five components of CUPE submitted comments in response to the NPAs. Transport Canada held a meeting with stakeholders on May 22, 2014, which CUPE attended. CUPE subsequently submitted further written dissents. Following the May 22, 2014 meeting, drafting of the amendments commenced
[18] On June 17, 2015, the challenged regulations were published in Part II of the Canada Gazette, without having been pre-published in Part I. It appears from the Regulatory Impact Analysis Statement (RIAS), which was published with the regulations, that Transport Canada was of the view that there had been extensive consultations in the past (when the 1:50 ratio was being considered during the 2000-2006 regulatory process) and that the issues were well‑understood by both Transport Canada and external stakeholders. However, there is no explanation regarding why the regulations were not pre-published in Part I of the Gazette, which is the usual approach, although exemptions from pre-publication may be granted.
[19] Although the issue in this Application for Judicial Review is only whether the challenged regulations were promulgated in breach of a duty of procedural fairness owed to CUPE, CUPE also submits that the safety implications of the new ratio were not fully considered by the Governor in Council and that the data relied on was insufficient. CUPE submits that it is uncontested that the 1:50 ratio is less safe. Although CUPE acknowledges that this Application is not about deciding which ratio is safer or better, CUPE’s submissions are peppered with references to their safety concerns.
[20] For example, CUPE submits that the challenged regulations do not contain several of the mitigation measures which had been described in 2005 as essential to ensuring safety. CUPE also disputes the information included in the RIAS, published in the Canada Gazette Part II with the challenged regulations. In describing the consultation process carried out in 2013-2014, the RIAS states that “no new data would have become available” that had not been collected during earlier consultations, and captured in earlier risk assessments. CUPE contests this, pointing out that the new regulations were not subject to a risk assessment, that the old risk assessment conducted in 2003 was not a quantitative risk assessment, and was based on outdated passenger load factors (noting that in the early 2000s, planes were typically only 70-75% full). The RIAS states that the new ratio will save $30 million per year, however CUPE notes that there is no evidence to support this assertion.
[21] CUPE also provided an expert report from Dr. Edwin Galea. Dr. Galea argues that, under modern-day passenger load factors and considering other evidence which Transport Canada did not examine, the challenged regulations pose safety concerns.
[22] The AGC submits that safety concerns were not ignored, and among other things, points out that Transport Canada’s 2003 risk assessment cited several reports authored by Dr. Galea. The AGC also points to the many simulations and tests conducted that led to the mitigation measures included in the challenged regulations. The Respondents submit that safety has not been compromised. However, safety is not the issue on this Application for Judicial Review.
D. The Order of the Case Management Judge
[23] In its original Notice of Application, CUPE alleged that: the promulgation of the challenged regulations breached procedural fairness; the regulations were void as ultra vires and also violated section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1867, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]; and, decisions made the Minister of Transport and Transport Canada officials leading up to the making of challenged regulations were unreasonable.
[24] CUPE requested documents from the Respondent, AGC, pursuant to Rule 317 of the Federal Courts Rules, (SOR/98-106) [Federal Courts Rules], with respect to all material used in making the decision not to pre-publish the challenged regulations and in making the regulations. The Assistant Clerk of the Privy Council responded that all materials other than the Order in Council were Cabinet confidences which could not be disclosed.
[25] CUPE then brought a further motion pursuant to Rule 317 for, among other things, production of relevant material in the possession of Transport Canada and other departments. CUPE accepted that the documents provided to the Governor in Council were Cabinet confidences, but argued that it was also challenging the “many decisions made and the process adopted by the Minister of Transport” in the lead-up to the promulgation of the challenged regulations. The AGC opposed the motion and argued that the Application simply challenged the regulation, and that all the relevant documents were Cabinet confidences pursuant to section 39 of the Canada Evidence Act, RSC 1985, c C5 [CEA].
[26] Prothonotary Tabib dismissed CUPE’s motion on November 22, 2016, making several findings, including that this Application is “primarily” for judicial review of the challenged regulations or the decision to adopt them, for which the decision-maker is the Governor in Council.
[27] The Prothonotary also found that Transport Canada’s process of consulting, drafting regulations and making a recommendation to the Governor in Council (i.e. the lead up to the approval by the Governor in Council) was not part of the same “course of conduct” as the adoption of the Regulations by the Governor in Council, and therefore it could not be reviewed as part of the Application pursuant to Rule 302, which limits judicial reviews to a single Order. The Prothonotary also found that in exercising the regulation making power, the Governor in Council was not bound by the Minister or his department.
[28] The Prothonotary noted that, in addition to challenging the impugned regulations, CUPE also challenged the decision not to pre-publish the regulations and the decision not to consult. The Prothonotary found that the decision not to pre-publish the challenged regulations was made by the Treasury Board. This decision was also not part of a course of conduct and could not be addressed in this Application, as it contravened Rule 302. The Prothonotary added that, in any event, material before the Treasury Board would also have been Cabinet Confidences.
[29] The Prothonotary also found that the challenge to the failure to consult was about the process leading up to the approval of the Regulations by the Governor in Council for which there was no identifiable record. Moreover, given the finding that the challenged decision was made by the Governor in Council, any documents in possession of the Minister of Transport about a decision not to consult did not need to be included in the record.
[30] CUPE did not appeal the Prothonotary’s Order. CUPE subsequently amended its Notice of Application to withdraw its challenge to the vires of the Regulation, and its Charter challenge. While the Notice of Application still alleges that decisions made in relation to the making of the Challenged Regulations were unreasonable, CUPE has not pursued this.
II. The Issues
[31] The Applicants argue that the challenged regulations must be quashed because the regulations were promulgated in breach of procedural fairness, and in breach of CUPE’s legitimate expectations that it would be meaningfully consulted.
[32] This entails consideration of:
Whether the Governor in Council owes a duty of procedural fairness in exercising its authority to promulgate regulations, including whether the doctrine of legitimate expectations applies; and,
If so, whether CUPE had a legitimate expectation that was breached, and more generally whether CUPE was denied procedural fairness.
[33] All parties agree that the standard of review on this application is correctness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43, [2009] 1 SCR 339).
III. The Applicant’s, CUPE’s, submissions
[34] CUPE submits that it was promised − in clear and unequivocal language − an extensive consultation process regarding proposed changes to the CARs. Specifically, it argues that it was promised the challenged regulations would be subject to a “full hearing” at the SCOT, and pre‑publication in Part I of the Canada Gazette. CUPE argues that this promise was made in 2004, 2005 and 2006. Although the membership of the SCOT changed, as did the government, CUPE argues that the Minister never rescinded the promise. CUPE suggests that its concerns are in the interest of safety, which is a non-partisan issue; therefore, the Government of the day would share the concerns of the previous government.
[35] CUPE submits that a duty of procedural fairness exists in the regulation-making process and that CUPE had a legitimate expectation of consultation, which is a key aspect of procedural fairness. CUPE argues that the law has developed to the point that such a promise of consultation should be enforceable on judicial review.
[36] CUPE adds that, in addition to this Court’s constitutional duty to review the exercise of public authority, it is good policy to recognize that procedural fairness may attach to the making of regulations because otherwise, individuals or groups who are negatively impacted have no opportunity to influence the process.
[37] CUPE submits that the facts are, for the most part, not disputed. The points of contention between CUPE and the Respondents relate to the strength of the promises made to CUPE and, relatedly, whether the 5th or 6th edition of the CARAC Charter governed the process for the challenged regulations in the 2013-2015 period.
A. The Promises Relied On
[38] CUPE recounts the history of the development of the regulations from 2000-2006. CUPE points to the transcript of the meeting of the SCOT on March 11, 2004 where the CUPE representative advised the SCOT that CUPE wanted a full debate on the 1:40 ratio. CUPE submits that this request triggered appearances before the SCOT from Transport Canada officials. The Deputy Minister of Transport advised the SCOT that the Minister intended to be “very strict on process”, and to employ the “full gazetting process” before the regulations were passed. In addition, the Minister of Transport appeared at the SCOT on March 25, 2004 indicating that no final decision to change the flight attendant ratio had been made, and that there would be a consultative process.
[39] The Assistant Deputy Minister of Transport also appeared before the SCOT on April 22, 2004 and reiterated the Minister’s undertaking to present the text of any proposed new regulations to the SCOT before publication in the Canada Gazette, Part I. CUPE submits that this statement was made on behalf of the Minister of Transport and reflects the promise to return to the SCOT with the draft regulations and to pre-publish the regulations. The Assistant Deputy Minister of Transport made similar comments when he appeared before the SCOT in June 2006.
[40] CUPE also relies on promises made directly to CUPE. First, on May 21, 2004, a Special Assistant to the then Minister of Transport, Mr. Tony Valeri, wrote to the president of CUPE advising that Transport Canada would return to the SCOT with the proposed regulations. Second, CUPE points to a response to an inquiry by a CUPE member to the Minister of Transport. The reply, sent by email from a Special Assistant to the Minister, noted that CARAC would be consulted, the SCOT would be advised, and the regulations would be pre-published in the Canada Gazette. Third, CUPE points to the December 9, 2005 letter from Transport Canada’s Chief of Regulatory Affairs to CUPE indicating that CUPE would have another opportunity to comment on the proposed regulations via pre-publication in Part I of the Canada Gazette. CUPE submits that these are strong promises made directly to CUPE by the Minister of Transport and those speaking on his behalf.
[41] CUPE notes that the proposed regulations were “shelved” in 2006. Regardless, CUPE submits that the promises made during this period were never rescinded, and therefore bound the new government when it revisited the 1:50 ratio, beginning in 2013. CUPE points to the 2014 Notice of Proposed Amendments (NPAs), which relied on the developmental work that had been done in 2000-2006, and stated that the 2006 file was “reactivated”. CUPE submits that the developmental work in 2000-2006 highlighted the gaps regarding the necessary mitigation measures, anticipated that there would be further consultation and promised pre-publication of the regulations. CUPE also refers to the 2014 PICA, which was purportedly used to determine the scope of consultation required or recommended and which based its assessment in part on the consultations which had come before.
[42] CUPE also submits that the new government made the same promises. CUPE points to a May 2013 assessment paper prepared in response to Sunwing’s request for an exemption from the 1:40 ratio, which was made in the lead-up to the change being made on an industry-wide basis via the challenged regulations. This assessment paper discussed the forthcoming challenged regulations, indicating that they were “awaiting the Minister’s approval for further promotion leading to pre-publication in Part I of the Canada Gazette.”
[43] CUPE asks the Court to infer that the promises made to CUPE of meaningful consultation and prepublication of the regulations in 2004-2006 remained alive, given that Transport Canada simply reactivated the file, which included the promises.
[44] CUPE submits that the consultations that were conducted regarding the challenged regulations in 2013-2015 fell far short of what was necessary or promised. The regulations were not pre-published, nor were they submitted to the SCOT before their promulgation. CUPE submits that they never saw the draft regulations. Further, CUPE argues that the NPAs differed significantly from the regulations which were ultimately promulgated. CUPE notes that the AGC has not explained why the regulations were not pre-published. Further, CUPE submits that the consultations did not reflect the process outlined in the 5th edition of the CARAC Charter − which CUPE submits states that all regulations will be pre-published − and did not reflect the process set out in the Guide to Making Federal Acts and Regulations, 2nd ed. (Ottawa: Her Majesty the Queen in Right of Canada, 2001) [Guide to Making Federal Acts and Regulations].
[45] In response to the Respondent’s submission that the 6th edition of the CARAC Charter governed at the time, CUPE argues that regardless of which edition governed, it expected both a hearing before the SCOT and pre-publication of the regulations.
[46] CUPE asserts that the report by Professor Galea of his simulations to assess the safety implications was ignored. CUPE suggests that Transport Canada only conducted qualitative assessments and cannot explain how it arrived at the mitigation measures included in the regulations. CUPE suggests that the Court should infer or assume that Transport Canada did nothing to justify its policy choice.
[47] CUPE acknowledges that it participated in the May 22, 2014 meeting with other stakeholders and Transport Canada, but submits that it was thwarted in its efforts to present or circulate its power point presentation. CUPE submitted a dissent to the NPA but argues that there is no evidence that its dissent was considered.
[48] CUPE submits that as a key stakeholder, it should have had further input, but had none apart from the May 2014 meeting. CUPE adds that there was no consultation on the claimed cost savings, the safety impact or the mitigation measures.
B. A Duty of Procedural Fairness Should Be Recognized
[49] CUPE argues that the nature of judicial review requires that Courts have the power to strike down regulations. CUPE submits that the Court has a constitutional duty to supervise the executive to ensure that it does not overstep its legal authority and that this duty extends to virtually all aspects of executive decision-making (Dunsmuir v New Brunswick, 2008 SCC 9 at para 28, [2008] 1 SCR 190) including the making of a regulation. As explained below, CUPE characterizes regulation-making as an executive function rather than as a legislative function.
[50] CUPE adds that the Courts have a role to play in ensuring public safety and in ensuring that executive decision making is lawful. In order for Courts to discharge these duties, Courts must have the power to quash regulations that negatively impact public safety.
[51] CUPE argues that judicial review of the lawfulness of executive decision-making includes ensuring that the executive respects the duty of procedural fairness. CUPE acknowledges that the content of this duty varies with the circumstances. However, it argues that all public authorities − including the Governor in Council − have an implied duty to act fairly, absent clear statutory language to the contrary (citing Canada (Attorney General) v Mavi, 2011 SCC 30 at paras 38-39, [2011] 2 SCR 504 [Mavi]).
[52] CUPE acknowledges that legislation cannot be attacked on procedural fairness grounds (Authorson v Canada (Attorney General), 2003 SCC 39, [2003] 2 SCR 40). However, CUPE makes a distinction between regulations and legislation. CUPE argues that regulations should be considered as executive acts of officials which are reviewable for procedural fairness like any other administrative act. CUPE submits that its interpretation is consistent with the Guide to Making Federal Acts and Regulations, which describes regulations as the acts of executive officials acting on delegated authority
[53] CUPE acknowledges that to date, Courts have only quashed regulations where they are ultra vires a statute, or were made in bad faith (Thorne’s Hardware Ltd et al v The Queen et al, [1983] 1 SCR 106 at 111, 143 DLR (3d) 577 [Thorne’s Hardware]). CUPE argues that, despite this, there is no definitive Canadian jurisprudence that states that regulations cannot be judicially reviewed for procedural fairness. CUPE argues that administrative law principles and trends in the UK jurisprudence, upon which key Canadian jurisprudence is based, support its position.
[54] CUPE submits that the UK law is relevant and can be relied on to fill in gaps in Canadian law. The UK jurisprudence has developed to apply the doctrine of legitimate expectations to the regulation making process. More specifically, CUPE submits that the UK jurisprudence establishes that representations from public authorities, past practice, and past involvement of stakeholders can all give rise to a legitimate expectation by the stakeholder that a certain process will be followed in the making of regulations. This, in turn, may impose certain procedural fairness obligations on the public authority that makes the regulations (R v Liverpool, ex parte Liverpool Taxi Fleet Operators Association, [1972] 2 QB 299 (CA)).
[55] CUPE further submits that if this Application were brought in the UK, CUPE would succeed because the prevailing law in the UK recognizes that the Government’s clear, unequivocal and direct statements about the intended procedure for regulation-making should be enforceable.
[56] CUPE notes that Apotex v Canada (Attorney General), [2000] 4 FCR 264, 188 DLR (4th) 145 (CA) [Apotex] is the only Canadian case that directly addresses the issue raised in this Application. CUPE relies on the reasons of Justice Evans, where he held that the doctrine of legitimate expectations could be invoked to create certain procedural obligations in the making of regulations. Justice Evans suggested that if a Minister acting in the scope of his or her authority makes a “specific assurance of prior consultation” to a party with respect to a contemplated regulation, the passage of that regulation without the promised consultation may constitute a breach of that party’s legitimate expectations, and therefore a breach of procedural fairness (para 105). Although Justice Evans ultimately concluded on the facts before him that there was no ability to judicially review the decision of the Governor in Council for procedural fairness because the Governor in Council had not made the promises at issue, CUPE argues that subsequent jurisprudence shows an openness to revisit the issue.
C. Breach of Procedural Fairness and Legitimate Expectations
[57] CUPE argues that, whether the issue is framed as one of legitimate expectations specifically, or procedural fairness more generally, the challenged regulations were made in breach of procedural fairness and the clear promises made to CUPE.
[58] CUPE submits that a duty of procedural fairness is owed with respect to all executive decision making, and the scope of the duty is determined in accordance with the factors established by the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 174 DLR (4th) 193 [Baker]. CUPE submits that the application of the relevant Baker factors supports a duty of procedural fairness at the higher end of the spectrum.
[59] CUPE notes that there is no appeal of the regulation, the decision is of high importance to CUPE and to the safety of the flying public, the 1:40 ratio will result in some flight attendants losing their jobs, and that the promised consultations did not occur and the usual process of pre‑publication of the regulations was not followed.
[60] CUPE argues that the Baker factors point to a requirement of significant consultation, or at least more consultation than was provided in the present case. CUPE adds that even a minimal duty of procedural fairness would require that CUPE be provided with the draft regulation and some type of hearing to permit it to make submissions.
D. Legitimate Expectations Were Not Met
[61] CUPE notes that the doctrine of legitimate expectations is an aspect of procedural fairness. The doctrine of legitimate expectations applies where a clear promise is made, with some particulars, by a person in authority. In such circumstances, the promise will be enforced. CUPE submits that the promises made to it were unequivocal; it had a legitimate expectation of a process that did not occur.
[62] As noted above, CUPE asserts that the Minister of Transport made two clear representations. First, between 2004 and 2006, the Minister and his Deputies promised the SCOT that the proposed amendments would be provided to the SCOT for a full, informed, public debate. Second, in letters, emails to CUPE and statements to the SCOT, the Minister of Transport promised that the proposed changes to the regulations would be pre-published in Part I of the Canada Gazette to ensure a full debate and to fill data gaps that had not been addressed earlier. CUPE also relies on the 5th edition of the CARAC Charter, which it submits promised prepublication. In addition, CUPE points to Transport Canada’s evaluation of Sunwing’s exemption application in 2013, which CUPE submits included an undertaking to pre-publish the proposed regulations.
[63] CUPE also reiterates that the 2015 RIAS states that the 2000-2006 regulatory process was “reactivated”. Therefore, CUPS submits that the promises made during that period were also reactivated.
[64] CUPE argues that, based on existing administrative law principles, and based on UK jurisprudence, the Minister of Transport’s failure to honour these promises should result in the regulations being quashed as a violation of the legitimate expectations doctrine.
[65] CUPE acknowledges that no promise of consultation was made by the Governor in Council. However, CUPE suggests that the decision to make the regulations was really made by Transport Canada officials, who did promise to consult with CUPE and should be held accountable.
[66] CUPE submits that secret decision-making is not fair and asks the Court to draw an adverse inference from the Government’s choice to invoke Cabinet Confidences in this case. CUPE notes that the Supreme Court of Canada addressed the issue of Cabinet Confidences in Babcock v Canada (Attorney General), 2002 SCC 57, [2002] 3 SCR 3 [Babcock] and cautioned against selective disclosure of information, noting that adverse inferences could be drawn (at para 36). CUPE argues that the Court should infer that the Governor in Council knew of the promise made to consult and to pre-publish the regulations, yet enacted the regulations regardless, and further that the Governor in Council enacted the regulations without adequately considering the submissions of stakeholders and simply “rubber stamped” them.
[67] CUPE reluctantly acknowledges that the RIAS was part of the material submitted to the Governor in Council, but suggests that it is a “mystery” what was actually considered. CUPE discounts the summary of the views of stakeholders included in the RIAS as not comprehensive. In particular, CUPE submits that its dissents are not specifically noted. Overall, according to CUPE the RIAS presented a “false picture” to the Governor in Council.
[68] Overall, CUPE submits that the challenged regulations were promulgated without the promised debate at the SCOT, without prepublication in the Canada Gazette and without adhering to the other promises. CUPE submits that, as a result, their legitimate expectations were breached, and/or they were denied procedural fairness. CUPE asks that the challenged regulations be struck down as a result.
IV. The Respondents’ Submissions
A. The AGC
[69] The AGC submits that there is no duty of procedural fairness owed by the Governor in Council in the regulation-making process. The AGC adds that even if a duty of procedural fairness could be found, CUPE cannot establish that there was a breach of procedural fairness or that it had a legitimate expectation of the consultation it seeks. The AGC also notes that CUPE did participate in the 2013-2015 consultations, as the RIAS reflects, and that CUPE’s input was noted.
[70] The AGC also highlights that the issue is not about whether public safety was compromised; noting that it has not been compromised.
[71] With respect to CUPE’s argument that the regulations were made in a manner which violated procedural fairness, the AGC argues that any general duty of procedural fairness does not apply to purely legislative functions (Cardinal v Director of Kent Institution, [1985] 2 SCR 643, 24 DLR (4th) 44 [Cardinal]).
[72] The AGC submits that the making of regulations constitutes legislative decision-making, not executive acts. Judicial review of legislative-decision making is limited to challenges to the constitutional validity or vires of a regulation (Canadian Council for Refugees v Canada, 2008 FCA 229 at para 53, [2009] 3 FCR 136 [Canadian Council for Refugees]).
[73] The AGC notes that section 35 of the Interpretation Act, RSC 1985, c I-21, defines Governor General in Council or Governor in Council as “the Governor General of Canada acting by and with the advice of, or by and with the advice and consent of, or in conjunction with the Queen’s Privy Council for Canada”. In other words, it acts on the advice of Cabinet and serves a legislative function.
[74] The AGC notes that the present challenge to the regulations is not about their constitutional validity or the jurisdiction of the Governor in Council to make the regulations – i.e., vires. AGC points out that CUPE withdrew its challenge to the vires of the regulation, as well as its Charter challenge. The challenge is about whether there is a duty of procedural fairness, and if so, whether it was breached vis-à-vis CUPE.
(1) Prepublication in the Canada Gazette is not required
[75] With respect to CUPE’s allegations that it was promised that the regulations would be pre-published in the Canada Gazette Part I, the AGC disputes that this was a promise or that it was made to CUPE. Although regulations are usually pre-published in the Canada Gazette, this is not a requirement imposed by statute. The AGC also notes that the Federal Government’s policy (the Guide to Making Federal Acts and Regulations) permits exemptions to pre‑publication of regulations on a case-by-case basis. The AGC also points to subsection 11(2) of the Statutory Instruments Act, RSC 1985, c S-22, which states that “no regulation is invalid by reason only that it was not published in the Canada Gazette.”
[76] The AGC also points to the Aeronautics Act, which requires specific regulations to be pre-published, for example, those dealing with land use (section 5.5) but does not require prepublication of the type of regulations being challenged. In other words, there is no statutory duty to pre-publish the challenged regulations.
[77] The AGC adds that the Aeronautics Act does not include any statutory duty to consult with respect to its general regulation making authority, although it does impose a duty to consult on certain other matters addressed in the Act.
(2) UK jurisprudence does not support a change in the Canadian law
[78] The AGC submits that UK jurisprudence also recognizes that the duty of procedural fairness does not extend to legislative decisions. The AGC notes that in Bates v Lord Hailsham of St. Marylebone, [1972] 1 WLR 1373 (Eng Ch Div) [Bates], the Court found that there is no duty to consult or general duty of fairness with respect to legislative matters, “whether primary or delegated” (1378). The AGC notes the more recent decision in Mosley v London Borough of Haringey [2014] UKSC 56, [Mosley] where the principle in Bates was reiterated. The AGC also submits that several of the UK cases relied on by CUPE were about statutory duties, i.e., the statute imposed the duty to consult, which the Courts gave meaning to.
[79] The AGC submits that regardless of whether Bates remains authoritative in the UK, the principle in Bates was adopted in Inuit Tapirisat of Canada v Canada (Attorney General), [1980] 2 SCR 735, [1980] 2 FC 735 [Inuit Tapirisat] by the Supreme Court of Canada, and the Canadian law is settled. The AGC also cautions that the regulation-making regimes in the UK differ.
(3) Apotex does not support CUPE’s position
[80] The AGC submits that Apotex does not support CUPE’s position. Rather, Apotex confirms the Respondents’ position that regulations made by the Governor in Council cannot be reviewed for procedural fairness. The AGC emphasizes that CUPE’s argument that regulations can be judicially reviewed is based only on the obiter comments of Justice Evans, which were not supported by the majority.
[81] The AGC notes that there were four issues addressed by the Court of Appeal in Apotex and all justices agreed on the result. The only issue of relevance to this Application is the Court of Appeal’s comments regarding the Applicant’s claim that their legitimate expectations were violated. The AGC emphasizes that Justice Evans’ comments, which CUPE relies on to support its position that the doctrine of legitimat