2019 FC, 2019 FC 1378

Date: 20191101 Docket: T-1809-18 Citation: 2019 FC 1378 Ottawa, Ontario, November 1, 2019 PRESENT: The Honourable Mr. Justice Campbell BETWEEN: SAUDI ARABIAN AIRLINES CORP. Applicant and TRANSPORTATION APPEAL TRIBUNAL OF CANADA AND CANADIAN TRANSPORT AGENCY Respondents JUDGMENT AND REASONS [ 1 ] The present Application concerns the exercise of legislative authority by which the Transportation Appeal Tribunal of Canada (Tribunal or TATC) addresses complaints advanced to it by entities, such as the Applicant, with respect to enforcement action received from the Canadian Transportation Agency (Agency). I.

The Factual Scenario [ 2 ] On December 21, 2016, the Applicant’s plane was scheduled to fly from Toronto to Jeddah. The airport’s ground handling workers began to push the plane back from the gate before the Applicant’s commander had given his instructions to do so, resulting in the plane’s engine cowling striking a stationary Air Canada service vehicle. A passenger filed a complaint.

On September 21, 2017, the Agency found the Applicant liable to the passenger for payment of the sum of $610. [ 3 ] Even though the Applicant paid according to the identified liability, on December 20, 2017, the Agency issued a Notice of Violation against the Applicant for an uncertain reason. On February 22, 2018, the Applicant filed a complaint to the Tribunal. In response the Tribunal scheduled a hearing to be held on September 19, 2018.

As a key feature of the scenario, on September 17, 2018, the Agency withdrew the Notice of Violation. [ 4 ] On September 18, 2018, the Applicant sent a letter to the Tribunal asking for direction as to how submissions might be made to retrieve costs as a result of the withdrawal.

On September 19, 2018, the Tribunal Registrar issued a letter to the Applicant stating that because the Notice of Violation had been withdrawn, the Tribunal was no longer seized of the matter. [ 5 ] On September 24, 2018, the Applicant sent a letter to the Tribunal contesting the Tribunal’s determination that it was no longer seized of the matter as a result of the withdrawal. On September 27, 2018, the Tribunal Chairperson issued a letter to the Applicant stating that the Tribunal was no longer seized of the matter. II.

The Application for Judicial Review [ 6 ] In the Application, Counsel for the Applicant defines the decision under review as follows: From the commencement of the initial application to the TATC, [ Transportation Appeal Tribunal of Canada Act, SC 2001, c 29 ] the Applicant had maintained to the Agency that their position was unfounded in law and that the Applicant intended to seek costs at the conclusion of the matter pursuant to Section 19(1) of the [TATC].

On September 18, 2018, following the withdrawal of the Notice of Violation, the Applicant contacted the TATC to obtain instructions with regards to the form of any such cost submissions.

On September 19, 2018, by way of a letter issued by the Registrar of the TATC, the TATC refused to accept any submissions with respect to costs on the basis that the TATC was no longer seized of the matter ("Impugned Letter"). (Applicant’s Notice of Application at para 1) [ 7 ] Accordingly, the Applicant requests the following relief: a declaration that the TATC unlawfully or improperly refused to exercise its jurisdiction; a declaration that the TATC failed to observe a principle of natural justice and procedural fairness; and a declaration that the TATC remains seized of the matter. [ 8 ] In support of the Application, Counsel for the Applicant’s primary argument emphasized the procedural fairness and costs issues as follows: Subsection 180.3(3) of the CTA further obligates the member of the Tribunal, and by extension the Tribunal itself, to

observe procedural fairness and natural justice in the conduct of the review. With regards to the authority of the Tribunal to award costs,

Section 19 of the TATC Act provides as follows: Costs 19(1) The Tribunal may award any costs, and may require the reimbursement of any expenses incurred in connection with a hearing, that it considers reasonable if (

a) it is seized of the matter for reasons that are frivolous or vexatious; (

b) a party that files a request for a review or an appeal and does not appear at the hearing does not establish that there was sufficient reason to justify their absence; or (

c) a party that is granted an adjournment of the hearing requested the adjournment without adequate notice to the Tribunal. […] If the TATC Act is interpreted in a manner which results in the Tribunal losing jurisdiction only as a result of the withdrawal, the Applicant will be left with no avenue to recover its costs from the Agency. (Applicant’s Memorandum of Fact and Law, paras. 15, 16, and 23) [Emphasis added] III.

The Hearing of the Application [ 9 ] At the hearing of the present Application, as essential context to reaching a decision, the Court requested further argument to clarify the roles and responsibilities of the individuals who participated in the Tribunal’s conduct under review. [ 10 ] In response to the Court’s request, Counsel for the Tribunal, supported by Counsel for the Agency, provided a highly detailed further argument. A wealth of material was supplied by Counsel for the Tribunal in formulating and verifying the further argument. I have included all of this material as Appendix A.

The Tribunal’s Further Memorandum begins at page 26 of that material. [ 11 ] Relevant documents contained in the Applicant’s Record that are cited in the Tribunal’s further argument, but not included in their further material, are listed and included in Appendix B. [ 12 ] Counsel for the Applicant’s reply to the Tribunal’s further argument includes the following statement at paras. 14 and 15: In the event that this Court is persuaded that there exists a breach of procedural fairness, which is sufficient to warrant the referral of this matter back to the Tribunal for (re)consideration, we would nonetheless seek a determination as to whether subsection 19(1) of the TATC Act continues to grant the Tribunal the authority to consider costs, irrespective of the Withdrawal.

Given that the Tribunal has previously ruled on this point, we would anticipate that the Agency will argue this point at any redetermination, if one were to be ordered. Without this Court’s clarification of the Tribunal’s jurisdiction in this matter, all of the parties may well again find themselves before this Court once again, on essentially the same fundamental question of law. [ 13 ] I very much appreciate Counsel for the Applicant’s candor in requesting clarification, even though doing so inherently risks a result that may not be positive from his perspective.

I agree that clarification of the Tribunal’s jurisdiction by way of the decision in the present Application is much needed. IV. Conclusion [ 14 ] I find that the Tribunal’s further argument has critical utility in that it places and explains the Tribunal’s conduct in its statutory context. Therefore, as reasons for decision, I accept each factual statement in the Tribunal’s argument and accept the conclusions there expressed. [ 15 ] In particular, with respect to Counsel for the Applicant’s primary argument regarding fairness and costs, I find the following.

Without providing notice, the Agency may withdraw a Notice of Violation before the Tribunal, and upon doing so, an applicant who has contested the Notice of Violation has no right of recourse to the Tribunal pursuant to the Transportation Appeal Tribunal of Canada Act , SC 2001, c 29 , the Canada Transportation Act , SC 1996, c 10 , and the Transportation Appeal Tribunal of Canada Rules , SOR/86-594 .

The existence of a Notice of Violation before the Tribunal is a condition precedent to the Tribunal’s jurisdiction to act. [ 16 ] Accordingly, I find that, on the standard of correctness, the Tribunal acted appropriately according to law. As a result, the present Application must be dismissed. JUDGMENT IN T-1809-18

Appendix “A” Appendix “A” THIS COURT’S JUDGMENT is that the present Application is dismissed. I make no order as to costs. "Douglas R. Campbell" Judge

APPENDIX “B” INDE X

Exhibit J, Affidavit of J o anne Rodri g uez, Applicant’s Record Exhibit M, Affidavit of Joanne Rodri g uez, Applicant’s Record Exhibit N, Affidavit of Joanne Rodri g uez, Applicant’s Record Exhibit P , Affidavit of J o anne Rodri g uez, Applicant’s Record Exhibit Q, Affidavit of Joanne Rodri g uez, Applicant’s Record Pagfe

FEDERAL COURT SOLICITORS OF RECORD

DOCKET: T-1809-18 STYLE OF CAUSE: SAUDI ARABIAN AIRLINES CORP. v TRANSPORTATION APPEAL TRIBUNAL OF CANADA AND CANADIAN TRANSPORT AGENCY PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: September 16, 2019 ADDITIONAL WRITTEN MATERIAL FILED PURSUANT TO THE DIRECTION OF JUSTICE CAMPBELL DATED SEPTEMBER 16, 2019 JUDGMENT AND REASONS: CAMPBELL J.

DATED: NOVEMBER 1, 2019 APPEARANCES : Ehsan Monfared For The Applicant Barbara Cuber For The Respondent TRANSPORTATION APPEAL TRIBUNAL OF CANADA Karine Matte For The Respondent CANADIAN TRANSPORTATION AGENCY SOLICITORS OF RECORD : YYZ Law Toronto, Ontario For The Applicant Transportation Appeal Tribunal of Canada Ottawa, Ontario For The Respondent TRANSPORTATION APPEAL TRIBUNAL OF CANADA Canadian Transportation Agency Gatineau, Quebec For The Respondent CANADIAN TRANSPORTATION AGENCY