ADMINISTRATIVE LAW |
Judicial Review |
Assoc. des pilotes de lignes internationales v. Urbino
T-1701-02
2004 FC 1387, Pinard J.
4/11/04
13 pp.
Judicial review following amendment to Canadian Aviation Regulations (CARs), s. 403.05 adopted under Aeronautics Act, s. 4.9--Applicant, association of employees, duly certified to represent pilots and flight engineers working at Air Transat--Applicant seeking order primarily declaring CARs, s. 403.05 invalid and of no force; declaring null and invalid all notices of revocation of privileges attached to Air Maintenance Engineer (AME) licences issued to applicants' flight engineers; ordering Transport Canada to institute new consultation process and conduct new regulatory impact analysis in conformity with Canadian Aviation Regulation Advisory Council's (CARAC) Management Charter and Procedures--Air Transat holder of Air Operator Certificate issued by Transport Canada in accordance with CARs--Manufacturer's flight manual of Lockheed 1011 aircraft requiring crew of three persons for safety reasons--Air Transat using flight engineers to fill third crew member position aboard aircraft--Air Transat also Approved Maintenance Organization (AMO) and having to ensure holders of Aircraft Maintenance Licences possess required qualifications to exercise certain privileges regarding repair and maintenance of aircraft--Air Transat flight engineers must hold flight engineer's licence, ground mechanic's licence and Air Maintenance Engineer (AME) licence--Aircraft taking off only if maintenance certified by signing of Maintenance Release--Only AME licence holders authorized to sign Maintenance Release--Regulations relating to issuance of AME licences amended in October 1996--Between December 1999 and March 2000, flight engineers who were members of applicant and Air Transat employees informed certification privileges attached to AME licence revoked and no longer authorized to sign Maintenance Releases--Amendments relating to currency requirements, found in CARs, s. 403.05-- CARs Regulatory Impact Analysis Statement (RIAS) indicating no substantive changes made to existing regulations, procedures, policies and industry practices respecting AME licences and no economic impact expected-- After coming into force of amended CARs, Air Transat twice requesting Transport Canada to suspend application of CARs, s. 403.05 to allow Air Transat to properly determine impact but requests denied--RIAS indicating industry adequately consulted before CARs, s. 403.05 adopted--Act, s. 4.9 not requiring consultation with interested persons before regulations enacted--Governor in Council having discretion to make regulations and high level of deference should be accorded--Policy directives included in Federal Regulatory Plan and CARAC's Management Charter and Procedures unenforceable by members of public--No legitimate expectation to be consulted and CARs, s. 403.05 not invalid-- Mandamus to compel Transport Canada to institute new consultation process issued only if case law requirements met --Applicant failing to meet requirement public duty to act since no legal obligation for Governor in Council to consult before enacting regulation--CARs, s. 403.05 valid regulation, dealing specifically with requirements for individual to continue to exercise AME privileges and sign Maintenance Release Certificates--Section not ambiguous, not needing interpretation--Review standard of patent unreasonableness applicable to factors used by Transport Canada to determine currency--Purpose of regulation public safety and not solely applicant's rights--Transport Canada more adept at determining requirements of flight engineers regarding safety of aircraft maintenance than Court--Requirements more a question of fact than of law--Deference should be accorded to Transport Canada in capacity to determine requirements needed for AME licence holders to maintain currency of licences and if requirements met--S. 403.05 not to be interpreted as recognition applicant's flight engineers fulfilling all requirements--Application dismissed--Aeronautics Act, R.S.C., 1985, c. A-2, s. 4.9 (as enacted by R.S.C., 1985 (1st Supp.), c. 33, s. 1; 1992, c. 4, s. 7)--Canadian Aviation Regulations, SOR/96-433, s. 403.05.