This summary of the regulatory process in aviation is a reference for lawyers to use when advising and acting on behalf of a client who is facing an issue in this area of law. In Canada, aviation is governed by the Aeronautics Act (the Act) and its associated regulations.
DISCLAIMER
This document is not intended to give legal advice. While every effort has been made to ensure that this resource is accurate and updated regularly, nuances may apply and the law cited may change after publication. Please check the applicable law before advising or acting on behalf of a client.
Transport Canada
Through authority delegated by the Minister of Transport, Transport Canada can take a variety of actions when a violation of the Act has occurred, or when a person authorized to do something is no longer qualified. Administratively, Transport Canada has an operational side and an enforcement side.
Operational Actions
Transport Canada’s operational side deals closely with industry – receiving and granting applications for various approvals and monitoring ongoing fitness. It issues Canadian aviation documents (CAD) that are required to exercise the relevant functions of an air carrier, aircraft maintenance organization, airport, pilot, and mechanic, etc.
The operational side can take action on a CAD against a document holder that will affect their privileges by way of suspension, cancellation or refusal to issue or amend the document. An operational Notice to suspend or cancel a CAD will often contain conditions for its reinstatement.
Enforcement Actions
Transport Canada’s enforcement side can also impose a suspension or cancellation of a CAD for a violation of the Act, as well as prosecute in court or impose fines by way of administrative monetary penalties (AMPs).
Regulatory action can be based on discoveries made during routine inspections or ramp checks, civil aviation daily occurrence reports (CADORS) that are filed by industry or air traffic control, investigations, accidents or incidents.
While the rule against double jeopardy applies, an operational suspension and an enforcement action have been held not to duplicate, so a person can face both. The rule against self-incrimination also applies, so an individual is well-advised to ask if they may be subject to prosecution or other action arising out of the investigation. If the answer is "yes", then the right to silence applies.
The Act requires persons to assist Transport Canada in investigations and to produce requested documents. Transport Canada will usually send a letter to the person being investigated, indicating the possible violation and inviting a response. Any admissions should be made carefully – they will become evidence, and may reveal weaknesses in Transport Canada’s case.
Court Proceedings
Court proceedings, by way of summary conviction or indictment, are rare but not unknown. Except for violations of subsection 7.3(1) of the Act (knowingly or willfully making a false representation to obtain a CAD or privilege; destroying a required document; making a false entry with intent to deceive or failing to make a required entry; obstructing a person performing their duties; operating or dealing with a detained aircraft; doing something that requires a CAD without or not in accordance with a CAD or doing so when a CAD is suspended or the act is prohibited by a court), or subsection 7.41 (unruly passengers), individuals will not be subject to imprisonment, but are always subject to fines up to the maximums provided in the various sections. Court proceedings will usually be prosecuted by the federal Department of Justice and a good criminal lawyer should be engaged to assist.
Administrative Monetary Penalties (AMPs)
The Minister has authority to assess AMPs in subsection 7.7 of the Act. If a section of the Act or regulation has been designated as one that AMPs apply to, then that section cannot be the basis for proceedings by way of summary conviction. If an AMP is paid, then no other enforcement action can be taken with respect to the violation.
The designated provisions are in the Designated Provisions Regulations and in subsection 103.08 of the Canadian Aviation Regulations. Maximum penalties are currently $5,000 for an individual and $25,000 for a corporation except for matters in subsections 4.81(1) and 4.82(4 and 5), which deal with providing passenger information for security purposes, where the maximum AMP is $50,000.
Notices
Following investigation, the Minister may issue a notice of the enforcement action taken – either suspension or cancellation of a CAD or an AMP. Once a notice of administrative action (suspension, cancellation or AMP) has been issued, there is often an opportunity for an informal conference to try to "make a deal". The informal conference should be acknowledged from the start to be "without prejudice". Although Transport Canada is likely to state that they will not consider the issue of guilt, a sensible solution can include some charges being dropped and others settled.
In operational certificate actions, the notice of suspension or cancellation will often arrive without any warning. In operational cases, it will usually take effect immediately, although in less serious cases, it will not come into effect until after a stated period of time. That may give the document holder an opportunity to meet the conditions for reinstatement before the suspension takes effect.
Transportation Appeal Tribunal of Canada
The Transportation Appeal Tribunal of Canada (Tribunal) is a quasi-judicial body, providing a review of most operation and enforcement actions by the Minister. The Tribunal is required to give the Minister and the person who filed the request an opportunity consistent with procedural fairness and natural justice to present evidence and make representations. The Minister has the burden of establishing guilt, on a balance of probabilities.
Normally, a request for review must be made to the Tribunal within 30 days of the date of the notice or its receipt. In some cases an application can be made to the Tribunal for an extension of that time. Transport Canada may choose not to work on reinstatement when a Tribunal review is pending because their resources will be focused on preparing for the review. The Minister's decision can be reviewed following reinstatement, but the request for review should still be filed within the 30 day period since an extension is not automatic.
In cases of operational suspension or cancellation, an application for review by the Tribunal does not act as a stay. Operational suspensions, cancellations or refusals can either be confirmed by the Tribunal or referred back to the Minister for reconsideration. If there is no immediate threat to aviation safety involved, the Tribunal can stay the Minister's decision pending that reconsideration – which can take considerable time.
Enforcement action involving a suspension or cancellation may be stayed on application to the Tribunal. A request for review of an AMP also suspends the requirement for payment. In the case of enforcement actions, the Tribunal's decision can either confirm the Minister's decision or vary it and, in the case of AMPs, can vary the penalty, down or (rarely) up.
Within 30 days of the Tribunal's decision, either party may appeal to the Tribunal. The appeal is usually conducted by a panel of three members. It is an appeal on the record, based on error in the review decision.
Judicial Review
The Federal Court has jurisdiction in 28 of the Federal Courts Act to exercise judicial review of a Tribunal decision if there is a jurisdictional error, a breach of natural justice, an error in law, a capricious or perverse finding of fact, fraud or perjured evidence, or an action contrary to law.
Summary of Regulatory Process in Aviation
The regulatory and enforcement actions that can be taken by Transport Canada are outlined in these tables.