Bill C-34: Transportation Appeal Tribunal of Canada Act (LS-411E)

This document was prepared by the staff of the Parliamentary Research Branch to provide Canadian Parliamentarians with plain language background and analysis of proposed government legislation. Legislative summaries are not government documents. They have no official legal status and do not constitute legal advice or opinion. Please note, the Legislative Summary describes the bill as of the date shown at the beginning of the document. For the latest published version of the bill, please consult the parliamentary internet site at www.parl.gc.ca.

HOUSE OF COMMONS		SENATE
Bill Stage	Date	Bill Stage	Date
First Reading:	26 September 2001	First Reading:
Second Reading:	4 October 2001	Second Reading:
Committee Report:	24 October 2001	Committee Report:
Report Stage:		Report Stage:
Third Reading:		Third Reading:

Royal Assent: Statutes of Canada N.B. Any substantive changes in this Legislative Summary which have been made since the preceding issue are indicated in bold print.

On 26 September 2001, the Minister of Transport, the Hon. David Collenette, introduced Bill C-34, the Transportation Appeal Tribunal of Canada Act, in the House of Commons. The bill provides for the establishment of the Transportation Appeal Tribunal of Canada (TATC) which would be an independent, quasi-judicial body – staffed by members with transportation expertise – that would act as a review mechanism for administrative and enforcement actions taken under various transportation Acts governing the aviation, marine and rail sectors. The TATC would be an expansion of the current Civil Aviation Tribunal (CAT) which performs review and appeal functions for the aviation sector.

The Civil Aviation Tribunal was established in 1986 under Part IV of the Aeronautics Act as a result of recommendations made by the Dubin Commission of Inquiry into Aviation Safety. Mr. Justice Dubin had also recommended the introduction of new and innovative enforcement authorities in the aviation program, most notable of these being administrative monetary penalties (fines). The CAT is an independent body which hears reviews and appeals from departmental decisions to assess monetary penalties and to suspend or cancel licences, certificates and other documents of entitlement, in the aviation sector. The CAT is also currently the review body for administrative monetary penalties issued by enforcement officers under the Canada Transportation Act.

Beginning in the fall of 1998, consultations have been held with the various transportation sectors on a Transport Canada proposal to transform the CAT into a multi-modal tribunal, so that the enforcement review processes currently available to the aviation sector under the Aeronautics Act would be available to the marine and rail transportation sectors as well. Policy papers were developed, a draft bill was posted on Transport Canada’s website, consultations were conducted, and stakeholders were briefed on the proposals.

The proposed TATC Act set out in the bill is modelled after the legislation that establishes the Civil Aviation Tribunal (i.e., Part IV of the Aeronautics Act).

Clause 2(1) establishes the Transportation Appeal Tribunal of Canada. Clause 2(2) addresses the jurisdiction of the Tribunal in a very general sense in that it provides the Tribunal with jurisdiction for reviews and appeals as expressly provided for under the Aeronautics Act, the Canada Shipping Act, the Marine Transportation Security Act, the Railway Safety Act and any other federal Act regarding transportation. Clause 2(3) provides that the Tribunal also has jurisdiction for reviews and appeals in connection with monetary penalties provided for under sections 177 to 181 of the Canada Transportation Act, which incorporate certain provisions of the Aeronautics Act.

Transport Canada officials point out that the specific jurisdiction of the Tribunal (and the kinds of decisions the Tribunal may make) is not set out directly in the proposed TATC Act itself, but is instead addressed in the various modal transportation Acts, for two reasons:

Clause 12 requires Tribunal reviews to be heard by a single member who has expertise in the transportation sector to which the review relates. Reviews concerning matters of a medical nature must be heard by a Tribunal member with medical expertise, regardless of whether the member also has expertise in the transportation sector to which the review relates.

Tribunal appeals (as opposed to reviews) must be heard by a panel of three members (clause 13(1)) unless the Chairperson considers it appropriate that more than three members hear the appeal or, with the consent of the parties, that one member hear the appeal (clause 13(2)). A member who decided the case is prohibited from sitting on an appeal panel established to hear an appeal from his/her decision (clause 13(3)). With the exception of the Chairperson and the Vice-Chairperson, members who sit on an appeal panel must have expertise in the transportation sector to which the appeal relates (clause 13(4)). However, in appeals concerning matters of a medical nature, at least one of the panel members must have medical expertise, regardless of whether that member has expertise in the transportation sector to which the appeal relates (clause 13(5)). A decision of a majority of members of an appeal panel is the decision of the panel (clause 13(6)).

Clause 14 describes the nature of appeals before the TATC; the clause reflects how appeals are currently conducted by the CAT, which the TATC is replacing.

The proposed TATC Act also addresses the nature of TATC hearings, including the following two aspects:

The authority of the TATC to hold its hearings in private is broader than is the comparable authority of the current CAT under section 37(3) of the Aeronautics Act. Although TATC hearings must generally be held in public, a hearing may be private in certain defined circumstances, namely, where a public hearing would not be in the public interest; or where there might be disclosure of personal medical information or confidential business information, and the private interests of the individual or company in keeping the information confidential outweigh the desirability of adhering to the general principle that hearings be conducted in public (clause 15(4)).

The ability of the TATC to award costs and/or expenses in defined circumstances is a power which the current CAT does not have. According to clause 19 (1), the TATC may award costs against a party and require the reimbursement of expenses where:

Clause 21 provides that the Tribunal’s decision on appeal is final and binding on the parties to the appeal; in other words, there is no further appeal to the courts on the merits of the case. Actions of the TATC will, however, be subject to judicial review in the same way that the actions of other administrative bodies are subject to judicial review. If, for example, the TATC exceeded its jurisdiction or made a decision that the legislation did not allow for, a party to the TATC proceedings could ask the Federal Court to review the TATC’s decision.

Clauses 23 to 32 are transitional provisions that, in practical terms, provide for the continuation of the Civil Aviation Tribunal as the Transportation Appeal Tribunal of Canada. These clauses are necessary to provide for a transition from the Civil Aviation Tribunal which hears cases in the aviation sector under the Aeronautics Act, to the Transportation Appeal Tribunal of Canada which will act in a multi-modal capacity under various transportation Acts.

The Aeronautics Act does not currently give the Civil Aviation Tribunal jurisdiction over decisions of the Minister not to issue or amend Canadian aviation documents under that Act. Proposed amendments to section 6.71 and new section 6.72 of the Aeronautics Act (in clause 34 of the bill) give the TATC this authority which, according to departmental officials, has long been advocated by the aviation community. According to proposed section 6.72(4), the Tribunal member, on review, can confirm the Minister’s decision or refer the matter back to the Minister for reconsideration.

Proposed section 6.71(3) (in clause 34) authorizes the making of regulations to exclude certain Canadian aviation documents from Tribunal review. According to the department, this is considered necessary because of the very broad definition of “Canadian aviation document” contained in the Aeronautics Act.

Proposed new section 6.9(7.1) (in clause 35) provides that persons who are alleged to have contravened the Aeronautics Act (and as a consequence have had their Canadian aviation document suspended or cancelled) are not required, and cannot be compelled, to testify at the Tribunal review hearing.

Proposed new section 7(2.1) (in clause 36) clarifies that a decision by the Minister to suspend a Canadian aviation document by reason of an immediate threat to aviation safety takes effect on receipt of the notice of suspension, unless the notice indicates that the suspension takes effect at a later date.

Proposed section 6.71(1) (in clause 34) deals with the grounds on which the Minister can refuse to issue or amend a Canadian aviation document. Proposed section 7.1 (in clause 37) addresses the suspension, cancellation and refusal to renew a Canadian aviation document on the same grounds. Section 7.1 currently separates out “medical grounds” from other qualifications and conditions required to be met for the issue and retention of Canadian aviation documents. As well, the provision only provides for Tribunal review of decisions not to renew documents on medical grounds. The proposed amendments to section 7.1 expand the jurisdiction of the Tribunal to include non-renewal on any of the prescribed grounds, not just medical grounds.

Clause 38 amends section 7.2 of the Aeronautics Act dealing with the appeal of Tribunal review decisions. The proposed amendment:

Clause 38 also adds a new section 7.21 to the Aeronautics Act. The proposed section authorizes the Minister to suspend, or refuse to issue, amend or renew a Canadian aviation document, where the applicant or holder of the document has not paid a monetary penalty imposed or confirmed by the Tribunal. This decision is not reviewable by the TATC. The new provision requires the Minister to give 30 days’ notice before suspending a document for non-payment of a monetary penalty.

The proposed amendments to the administrative monetary penalty provisions (sections 7.7 to 7.9) of the Aeronautics Act contained in clause 39 of the bill leave the current legislative system largely intact, with the following exceptions:

Clause 41 amends section 8.1 of the Aeronautics Act. It extends the period for launching an appeal from a review decision regarding a monetary penalty to 30 days (from 10 days) and removes the right of appeal for persons who, without just cause, fail to appear at a review hearing.

Clause 44 repeals Part IV of the Aeronautics Act, which establishes the Civil Aviation Tribunal. This amendment is consequential to the establishment of the Transportation Appeal Tribunal of Canada (replacing the Civil Aviation Tribunal) under the bill.

The proposed amendments to the Canada Shipping Act in clauses 46 to 51 of Bill C-34 establish the jurisdiction of the TATC under the following provisions:

Clauses 504 and 505 of the Canada Shipping Act currently provide for the suspension and cancellation of master, mate and engineer certificates by the Minister on specified grounds, after an inquiry conducted by a person appointed by the Minister or by a judge of the Admiralty Court. Clause 51 replaces sections 504 and 505 and, as well, in proposed sections 504.1 to 505.2, provides for Tribunal review and appeal proceedings regarding suspensions and cancellations of certificates of competency or service, on the above specified grounds. In the case of a suspension or cancellation of a certificate under proposed section 504(a), (c), or (e), the TATC can either confirm the Minister’s decision or refer the matter back to the Minister for reconsideration. In the case of a suspension or cancellation of a certificate under proposed section 504(b) or (d), the TATC can either confirm the Ministers’ decision or substitute its decision for that of the Minister.

The Tribunal review and appeal procedures set out in proposed sections 504.1-505.2 (in clause 51) are comparable to those proposed in Bill C-14, the Canada Shipping Act, 2001 (as it would be amended by Bill C-34), in respect of which the role of the “adjudicators” would be assumed by the TATC.

Clauses 55 to 59 propose a number of consequential amendments to the Marine Transportation Security Act (MTSA) in order to establish the jurisdiction of the TATC for administrative enforcement decisions under that Act. The proposed amendments to the MTSA establish the jurisdiction of the Tribunal under:

Clause 57 proposes to replace current section 19 of the MTSA with sections 19 to 19.8 in order to: provide for Tribunal review and appeal of decisions of the Minister to refuse to designate screening officers for purposes of the Act; and to suspend, cancel or refuse to renew designations.

It should be noted that screening officers are designated in aviation, marine and rail transportation modes – under the Aeronautics Act, the Marine Transportation Security Act and the Railway Safety Act respectively. The proposed procedures for TATC review are essentially the same under all three Acts.

Proposed section 19.2 sets out the grounds for refusal to designate, refusal to renew a designation, and for the suspension and cancellations of designations by the Minister. Proposed section 19.5 sets out the Tribunal review procedures and what the Tribunal may decide on review. If the designation decision relates to the competency or qualifications of a screening officer, or to whether an immediate threat to marine transportation security exists, the TATC can only confirm the Minister’s decision or refer it back to the Minister for reconsideration (proposed section 19.5(4)(a)). However, if the designation decision relates to a violation of security regulations, measures or rules, the TATC can substitute its decision for that of the Minister (proposed section 19.5(4)(b)).

Proposed section 19.6 provides for the appeal of review decisions to the Tribunal, the loss of appeal rights for persons who fail to appear at review hearings, and what the Tribunal may decide on appeal.

Clause 59 proposes to add sections 32 to 51 to the Marine Transportation Security Act. These proposed sections authorize the Minister to enter into assurances of compliance (with persons who have committed violations of designated provisions under the Act) and to impose administrative monetary penalties (through notices of violation). These are new enforcement authorities being included in the Act and they mirror and supplement the corresponding provisions concerning administrative penalties proposed in Bill C-14, the Canada Shipping Act, 2001 (clause 228 and following in Bill C-14). This is to ensure the consistency of enforcement authorities and practices within the marine transportation sector.

Administrative penalties provide an alternative to instituting criminal proceedings against a person for matters that are technical or administrative in nature. Transport Canada officials note a growing trend in government to “de-criminalize” regulatory infractions.

According to departmental officials, two of the more effective administrative enforcement tools are: assurances of compliance, and monetary penalties. Assurances of compliance constitute an agreement between Transport Canada, as the regulator, and the member of the regulated community who committed a violation, that the latter will undertake all necessary actions to come into full compliance with the law. Monetary penalties are more of a punitive measure, usually applicable in more serious cases of non-compliance.

Proposed sections 33 to 38 address assurances of compliance and their review by the Tribunal. A person who enters into an assurance of compliance is deemed to have committed a violation, although there is a 48-hour period in which they can reconsider their situation and request the Tribunal to conduct a review of the facts of the violation (proposed section 34). Where the Minister believes that an assurance of compliance has not been complied with, the Minister may issue a notice of default under which double the amount of the penalty otherwise payable for the contravention becomes payable, or any security deposit is forfeited (proposed section 36). The notice of default is reviewable by the Tribunal, on application by the person on whom the notice was served (proposed section 37(1)). On review, the Tribunal can either confirm the Minister’s decision or determine that the person has complied with the assurance of compliance (proposed section 37(6)). The Minister has the burden of establishing that the assurance was violated (proposed section 37(4)). The defence of “due diligence” is not available to the person alleged to have violated the assurance agreement (proposed section 37(5)).

Proposed section 39 sets out the Tribunal review procedures when the Minister imposes a monetary penalty for the issuance of a notice of violation. The Tribunal member may confirm the Minister’s decision or substitute his or her own determination. The review process is consistent with the Tribunal procedures for reviewing the assessment of monetary penalties under the proposed amendments to the Aeronautics Act.

Proposed section 40 provides for an appeal to the Tribunal for review determinations related to both assurances of compliance and notices of violation. On appeal, the Tribunal is empowered to make a binding decision as to whether the assurance of compliance, or designated provision giving rise to the assessment of a monetary penalty, was violated.

Proposed section 47 provides for the removal of notations of violations and default and decisions concerning screening officer designations from a person’s record after five years, unless the Minister considers removal not to be in the public interest (proposed section 47(1)). The Minister must notify the person if he or she decides not to remove the notation (proposed section 47(2)). Such decisions are reviewable by the Tribunal. The member of the Tribunal assigned to conduct the review may confirm the Minister’s decision or refer the matter back to the Minister for reconsideration (proposed section 47(5)). The Act also provides for an appeal from the Tribunal’s review decision (proposed section 47(6)). On appeal, the Tribunal may dismiss the appeal or refer the matter back to the Minister for reconsideration (proposed section 47(8)).

Clauses 64 to 70 propose a number of consequential amendments to the Railway Safety Act. The proposed amendments establish the jurisdiction of the TATC over the administrative enforcement decisions taken under the Railway Safety Act.

Clause 65 adds sections 27.1 to 27.8 to the Railway Safety Act. Proposed section 27.1 sets out the grounds that the Minister may invoke for making administrative enforcement decisions concerning screening officer designations. They are consistent with the grounds used for comparable decisions under the proposed amendments to the Aeronautics Act and the Marine Transportation Security Act.

These proposals also provide for TATC review of decisions of the Minister to refuse to designate a person as a screening officer, to refuse to renew a designation, and to suspend or cancel a designation (proposed sections 27.3 to 27.8). The proposed jurisdiction and decision-making authorities of the TATC in relation to screening officer designations under the Railway Safety Act are the same as those of the Tribunal in relation to screening officers under the proposed amendments to the Marine Transportation Security Act referred to earlier.

Section 31 of the Railway Safety Act currently authorizes railway inspectors to issue orders that line work, crossing work, road crossing or railway equipment not be used, where their use would constitute an immediate threat to safety. Clause 66 adds new section 31(4.1) requiring that notices containing section 31 orders refer to the fact that the person to whom the order has been issued has 30 days to request a review of the order by the Tribunal. Clause 66 also replaces section 31(9) of the Act, which currently provides for a review of the railway inspector’s order by the Minister.

Clause 67 adds proposed sections 31.1 to 31.5 to the Act. Proposed section 31.1 sets out the procedures for TATC review of a section 31 order and what the Tribunal may decide on review. The process is similar to the proposed process for Tribunal review of decisions affecting screening officer designations under the Act and comparable proposed Tribunal proceedings under other Acts. The Tribunal arranges for a hearing to be held, hears both parties, and makes a determination. On review, the Tribunal can either confirm the order or refer the matter back to the Minister for further consideration (proposed section 31.1). The recipient of the order can appeal the Tribunal determination on review to the appeal panel of the Tribunal, which can either dismiss the appeal or refer the matter to the Minister for consideration (proposed section 31.2). An order of a railway safety inspector remains in effect while under review or appeal by the Tribunal and when referred to the Minister by the Tribunal (proposed section 31.3). Departmental officials note that it is appropriate for the order to remain in effect until ultimately dealt with by the Tribunal, because the order was made on the basis that an immediate threat to safety existed.

Section 32 of the Railway Safety Act concerns an order by the Minister to: remove or modify railway work; remove threats to safe railway operations; or take corrective measures to address deficiencies with safety management systems. Clause 68 amends section 32 so as to require that notices containing section 32 orders refer to the fact that a request for a review of the order may, within 30 days, be filed with the Tribunal.

Clause 69 adds proposed sections 32.1 to 32.5 to the Act, setting out the procedures for review and appeal of a section 32 order by the Tribunal. The process for Tribunal review and appeal of a section 32 order is similar to the process concerning a section 31 order with one major difference. Orders issued under section 32(1) (concerning unauthorized or improperly maintained works) and section 32(3.1) (concerning management system deficiencies) are stayed pending final disposition, when a request for review is filed with the Tribunal, because neither is based on an immediate threat to safety (proposed section 32.3). However, orders issued under section 32(3) (contravention of regulations) are based on an immediate threat to safe railway operations and remain in effect pending final disposition of the matter by the Tribunal (proposed section 32.3).

In all circumstances under section 32, the Tribunal is limited to confirming the order or referring the matter back to the Minister for reconsideration (proposed sections 32.1 and 32.2).

Clause 71 is a coordinating amendment to this bill which is required if Bill C-14, the Canada Shipping Act, 2001, receives Royal Assent. If it does, then, on the coming into force of section 1 of that Act, clause 71 of Bill C-34 changes the reference in clause 2(2) of Bill C-34 (concerning the TATC’s jurisdiction generally) to the Canada Shipping Act, 2001, instead of the Canada Shipping Act. This is because Bill C-14, the Canada Shipping Act, 2001, once proclaimed in force, will generally repeal and replace the current Canada Shipping Act.

Clause 72 is dependent on Bill C-14, the Canada Shipping Act, 2001 receiving Royal Assent and the coming into force of section 2 of Bill C-34, the Transportation Appeal Tribunal of Canada Act. The effect of clause 72 is to import the TATC review and appeal process into Bill C-14, the Canada Shipping Act, 2001. The latter currently contemplates reviews of certain administrative enforcement decisions being undertaken by an “adjudicator.” Clause 72 generally makes these decisions subject to TATC review instead.

The decisions for which the TATC would have jurisdiction relate to the following clauses of Bill C-14, the Canada Shipping Act, 2001:

Decisions made by the Minister regarding Canadian maritime documents under clauses 16 and 20 of Bill C-14, which, as Bill C-14 currently stands, would be reviewable by an adjudicator, would instead be made subject to review by the TATC (clause 72 of Bill C-34). The proposed Tribunal review and appeal processes and what the Tribunal can decide on review and appeal are consistent with the proposals concerning the Tribunal’s jurisdiction under the other modal transportation Acts (referred to above). Generally, it is proposed that where the document action is “punitive” in nature and relates to regulatory non-compliance, the Tribunal can substitute its decision for that of the Minister. Where, on the other hand, the issue relates to competency, qualification and other safety considerations, the Tribunal is limited to confirming the Minister’s decision or referring the matter back to the Minister for reconsideration.

Clause 72(e) amends clause 16 of Bill C-14 by including, in the notice issued to the applicant concerning refusal to issue a Canadian maritime document, a reference to the applicant’s right to seek TATC review of the Minister’s decision. Clause 72(f) adds new clause 16.1 to Bill C-14, detailing the TATC’s review process and the Tribunal’s decision-making authorities on review.

Clause 72(g) adds new clauses 20.1 to 20.5 to Bill C-14, detailing the Tribunal review process and decision-making authorities under clause 20 (concerning suspension, cancellation or refusal to renew a Canadian maritime document), as well as appeal rights and decisions under both clauses 16 and 20.

Clause 72(k) replaces clauses 230 to 232 of Bill C-14 with new clauses 230 to 232.2. The proposed clauses specify TATC procedures and decision-making authorities regarding administrative penalties provided for in clause 229 of the bill. As regards assurances of compliance and notices of violation (monetary penalties), the Tribunal could make binding determinations on whether an assurance of compliance was violated, or whether a designated provision was violated and what the penalty should be for the violation.

Clause 72(n) replaces clause 239(1)(a) of Bill C-14 to refer to the TATC rather than adjudicator decisions. Clause 72(o) replaces clause 239(3) of Bill C-14 to provide for Tribunal review and appeal of decisions of the Minister not to remove notations of violations and default and decisions related to Canadian maritime documents.

According to clause 73, all of the provisions of the bill, other than clauses 71 and 72, discussed above, come into force on a day or days to be fixed by order of the Governor in Council.

According to departmental sources, aviation stakeholders have essentially been neutral on the TATC proposals, while railway companies have generally been supportive of the bill.

Some marine stakeholders have linked the TATC proposals to the new administrative enforcement measures proposed in Bill C-14, the Canada Shipping Act, 2001 which they do not support; consequently, they do not feel there is any need for the TATC. As well, some marine groups want the TATC to function more like a criminal court, for example, applying strict rules of evidence and deciding cases on the criminal standard of proof, i.e., beyond a reasonable doubt.

Some stakeholders in all three modes (i.e., air, marine and rail) advocate increased decision-making authorities for the TATC, including the authority to make final decisions in cases involving competencies and qualifications.

Labour groups have expressed concern that the TATC proposals are not in the best interests of their members. They want the TATC to play a broader role in addressing transportation safety issues, rather than being limited to reviewing specific enforcement actions taken against operators and individuals.

* Notice: For clarity of exposition, the legislative proposals set out in the Bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both Houses of Parliament, receive Royal Assent, and come into force.