Canada (Attorney General) v. Prism Helicopters Ltd., (2007) 322 F.T.R. 246 (FC)

• Judge: Frenette, D.J.
• Court: Federal Court (Canada)
• Case Date: December 05, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 322 F.T.R. 246 (FC);2007 FC 1346

Can. (A.G.) v. Prism Helicopters Ltd. (2007), 322 F.T.R. 246 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. JA.004

The Attorney General of Canada (applicant) v. Prism Helicopters Limited (respondent) and Transportation Appeal Tribunal of Canada (intervenor)

(T-693-07; 2007 FC 1346)

Indexed As: Canada (Attorney General) v. Prism Helicopters Ltd.

Federal Court

Frenette, D.J.

December 20, 2007.

Summary:

The Minister of Transport exempted Canadian air operators of certain aircraft types and their flight crew from certain requirements of s. 605.85 (1) of the Canadian Aviation Regulations. The exemption was made pursuant to s. 5.9(2) of the Aeronautics Act. Prism Helicopters Ltd. applied to the Transportation Appeal Tribunal of Canada for a review of the Minister's subsequent decision to cancel the exemption. The Tribunal's jurisdiction was limited to reviewing the Minister's decision to cancel, suspend, refuse to issue, review or amend a Canadian aviation document (CAD). The Tribunal found that a s. 5.9(2) exemption was a CAD as defined in the Act and it had jurisdiction to review the Minister's decision. The Attorney General of Canada applied for judicial review of the Tribunal's decision.

The Federal Court dismissed the application.

Aeronautics - Topic 2

Canadian aviation document - Defined - Section s. 3(1) of the Aeronautics Act stated "'Canadian aviation document' means, subject to subsection (3), any licence, permit, accreditation, certificate or other document issued by the Minister under Part I to or with respect to any person or in respect of any aeronautical product, aerodrome, facility or service" - Section 6.6 added to the definition by indicating that a CAD included any privilege accorded by a CAD - However, certain documents were expressly excluded from belonging to the class of CADs in s. 3(3) - The Federal Court stated that "given the fact that the contours of what constitutes a CAD are explicitly set out in the Act, including those documents which are expressly excluded from this category, the determination of what constitutes a permit or accreditation should be carried out in a broad manner. Consistent with this broad interpretative approach, the determination of what constitutes a CAD involves consideration of the particular effect of the document in question" - See paragraph 40.

Aeronautics - Topic 2

Canadian aviation document - Defined - The Minister of Transport exempted Canadian air operators of certain aircraft types and their flight crew from certain requirements of s. 605.85 (1) of the Canadian Aviation Regulations - The exemption was made pursuant to s. 5.9(2) of the Aeronautics Act - Prism Helicopters Ltd. applied to the Transportation Appeal Tribunal of Canada for a review of the Minister's subsequent decision to cancel the exemption - The Tribunal's jurisdiction was limited to reviewing the Minister's decision to cancel, suspend, refuse to issue, review or amend a Canadian aviation document (CAD) - The Tribunal held that it had jurisdiction to review the Minister's decision - The Tribunal found that a s. 5.9(2) exemption was not a statutory instrument - The Tribunal also held that the exemption was an accreditation or a permit that gave to Prism Helicopters a privilege of a waiver from compliance with s. 605.85(1) of the Regulations and the s. 5.9(2) exemption was therefore a CAD as defined in the Act - The Federal Court, applying a standard of review of correctness, dismissed an application for judicial review of the Tribunal's decision - The court agreed that the exemption issued pursuant to s. 5.9(2) was not a statutory instrument and that the 5.9(2) exemption in issue was a permit or accreditation.

Aeronautics - Topic 2624

Regulation - Licensing - Suspension or cancellation of aviation document - [See second Aeronautics - Topic 2 ].

Aeronautics - Topic 2762

Regulation - Transportation Appeal Tribunal (formerly Civil Aviation Tribunal) - Jurisdiction - [See second Aeronautics - Topic 2 ].

Aeronautics - Topic 2763

Regulation - Transportation Appeal Tribunal (formerly Civil Aviation Tribunal) - Judicial review - The Attorney General of Canada applied for judicial review of a decision rendered by the Transportation Appeal Tribunal of Canada, wherein it concluded that it had jurisdiction to review a decision by the Minister of Transport to cancel an exemption granted pursuant to s. 5.9(2) of the Aeronautics Act - The Federal Court applied the pragmatic and functional approach and determined that the standard of review was correctness - See paragraphs 20 to 25.

Statutes - Topic 5307

Operation and effect - Delegated legislation - General and definitions - Statutory instrument defined - [See second Aeronautics - Topic 2 ].

Cases Noticed:

Aztec Aviation Consulting Ltd. v. Canada et al. (1990), 33 F.T.R. 210 (T.D.), refd to. [para. 14].

Swanson and Peever v. Canada, [1992] 1 F.C. 408; 124 N.R. 218 (F.C.A.), refd to. [para. 14].

Air Nunavut Ltd. v. Canada (Minister of Transport), [2001] 1 F.C. 138; 187 F.T.R. 16 (T.D.), refd to. [para. 20].

Canada (Attorney General) v. Woods (2002), 223 F.T.R. 298; 2002 FCT 928, refd to. [para. 20].

ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.), [2006] 1 S.C.R. 140; 344 N.R. 293; 380 A.R. 1; 363 W.A.C. 1; 2006 SCC 4, refd to. [para. 22].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 23].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 23].

Stewart Lake Airways Ltd. v. Canada (Minister of Transport) (1995), 93 F.T.R. 186 (T.D.), refd to. [para. 23].

Seprotech Systems Inc. v. Peacock Inc. et al. (2003), 300 N.R. 277; 2003 FCA 71, refd to. [para. 23].

Canada (Minister of Transport) et al. v. Cooper et al. (1995), 106 F.T.R. 311 (T.D.), consd. [para. 29].

Canada (Attorney General) et al. v. Beingessner et al. (1996), 113 F.T.R. 301 (T.D.), consd. [para. 31].

Marine Research Inc. v. Canada (Attorney General) (2007), 365 N.R. 217; 2006 FCA 425, refd to. [para. 35].

Liberty Home Products Corp. v. Minister of National Revenue (Customs and Excise) (1990), 113 N.R. 51 (F.C.A.), refd to. [para. 36].

Renault v. Bell Asbestos Mines Ltd., [1980] C.A. 370 (Que. C.A.), refd to. [para. 43].

Statutes Noticed:

Aeronautics Act, R.S.C. 1985, c. A-2, sect. 3(1) [para. 17]; sect. 3(3) [para. 18]; sect. 5.9(2) [para. 1]; sect. 6.6 [para. 17].

Authors and Works Noticed:

de Smith, Stanley Alexander, Judicial Review of Administrative Action (4th Ed. 1980), generally [para. 35].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 44].

Counsel:

Mr. Tzemenakis, for the applicant;

No one appearing for the respondent;

Gerry H. Stobo and Jack Hughes, for the intervenor.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

Borden Ladner Gervais LLP, Ottawa, Ontario, for the intervenor.

This application was heard on December 5, 2007, at Ottawa, Ontario, before Frenette, D.J., of the Federal Court, who delivered the following judgment on December 20, 2007.