Transportation Appeal Tribunal of Canada (TATC)
replaces CAT
On Dec. 18, 2001, the Transportation Appeal Tribunal of Canada Act received
Royal Assent and is now chapter 29 of the Statutes of Canada, 2001.
The thrust of this Act is to establish the Transportation Appeal Tribunal of
Canada (TATC) and to amend several key pieces of transport legislation.
The Act and proposed amendments in force since June 30, 2003, include the
Aeronautics Act, the Canada Transportation Act and the Railway Safety Act.
The amendments to the Marine Transportation Security Act and the Canada Shipping
Act, 2001 are to be brought into force at later dates.
These latter amendments will form part of the comprehensive regulatory
strategies underway in the areas of marine safety and marine security.
The TATC will replace the current Civil Aviation Tribunal (CAT). The CAT was
established in 1986 as a result of recommendations made by the Dubin Commission
of Inquiry into Aviation Safety.
The CAT was created as a review mechanism for the use of the new administrative
based compliance authorities placed in the Aeronautics Act.
It was also created in part, to address the position of the aviation community
that the interests of their members would be better served by establishing a
specialized quasi-judicial review body that is independent of Transport Canada.
The CAT’s principal mandate was to hold review and appeal hearings at the
request of an affected party with respect to certain licensing and enforcement
actions taken by the Minister of Transport.
The TATC’s principal mandate is the same as that of the CAT but with a wider
application. It provides the marine and rail sector with the same effective
recourse rights in respect of certain administrative decisions, which were
previously only available to the aviation sector.
It will operate along the principles which governed the CAT, and which have made
the CAT a best practice in the enforcement of the Aeronautics Act.
TATC PROCEDURES
The Tribunal conducts two levels of hearings:
The first level of hearing, conducted by one Tribunal Member would be a REVIEW
HEARING of the Regulator’s decision.
The second level of hearing, usually heard by a designated Chairperson and two
other Tribunal members is an APPEAL HEARING at which the decision made by the
Tribunal member at the first level review hearing is scrutinized. The member who
conducted the review hearing cannot be a member of the APPEAL panel.
Review Hearings:
There are two main parties to a review hearing: the Applicant (the person
affected by the Regulator’s Decision and who requested a hearing) and the
Respondent (the Regulator).
Both parties have an opportunity to present their “case” in the form of
arguments, the submitting of documents and physical objects, and the questioning
of witnesses. Although informal in nature, hearings proceed in an orderly manner
with the sequential and logical presentation of the parties’ cases.
The burden of proof is on the Regulator - this means that the Regulator must put
forward the case supporting the decision, which is the subject of the hearing.
Since the burden of proof is on the Regulator, the Applicant is under no
obligation to submit evidence.
However, the Applicant may wish to introduce evidence refuting the Regulator’s
case (e.g. that there was no immediate threat to safety) or introducing a
defence, such as due diligence (having taken all reasonable and prudent actions
that a reasonable person would have taken in these particular circumstances).
The standard of proof that must be met is the civil one of “on the balance of
probabilities”. This means that the Regulator must satisfy the Tribunal that it
was “more probable than not” that a certain situation existed (e.g. immediate
threat to safety or lack of competence) or a certain regulatory contravention
occurred.
Similarly, where the Applicant wishes to establish a defence, the standard of
proof that he or she must establish is the same, being the “balance of
probabilities”.
Subsequent to the hearing, each of the parties to the proceedings receives from
the Tribunal a review determination, with written reasons.
Appeal Hearings:
If a recipient of a review determination is not satisfied with the
determination, he or she may request an appeal hearing, within 30 days of the
receipt of the determination.
The parties to an appeal are the Appellant (the person who has asked for the
appeal) and the Respondent. The appeal will be limited to the merits of the
matter based on the review hearing record and oral argument. The burden is on
the Appellant to establish to the appeal panel’s satisfaction that the Tribunal
member erred in some way in arriving at the review determination.
Subsequent to the hearing, each of the parties to the proceedings receives from
the Tribunal an appeal determination, with written reasons.
All appeal determinations are final. However, a person dissatisfied with the
decision may seek judicial review by the Federal Court (Trial Division).
TATC JURISDICTION
Aeronautics Act:
The Tribunal has jurisdiction to review the following decisions taken by the
Regulator:
Refusal to issue or amend a Canadian Aviation Document (CAD) for various
reasons, under s. 6.71(1);
Suspension or cancellation of a CAD for a contravention, under s. 6.9(1);
Suspension of a CAD based on an immediate threat to safety, under s. 7(1);
Suspension, cancellation or refusal to renew a CAD for various reasons, under s.
7.1(1);
Imposition of an administrative monetary penalty (AMP) for a contravention,
under s. 7.7(1); and,
Refusal to remove an enforcement notation for various reasons, under s. 8.3(1).
The Tribunal has the power to substitute its decision for that of the Regulator
where the Regulator’s decision was based on a contravention (e.g. actions taken
under s. 6.9(1) and s. 7.7(1)). In most other instances, the powers of the
Tribunal are limited. For more detailed information, please refer to Appendix A
to this document.
To learn more about TATC see the website or call the numbers listed below:
Transportation Appeal Tribunal of Canada
CAT/TATC Web site: www.cat-tac.gc.ca
Contact: Civil Aviation Tribunal, 12th floor, 333 Laurier Avenue West, Ottawa,
Ont., K1A 0N5.
Tel.: 613-990-6906; Fax: 613-990-9153; E-mail: cattac@smtp.gc.ca.
Transport Canada - General Information, Transport Canada Web site: www.tc.gc.ca/tcss/tatc/menu_e.htm.
Kim Ellard, TATC Project Manager, Place de Ville Tower C, 12th floor, Ottawa,
Ont., K1A 0N8.
Tel.: 613-993-1235; Fax: 613-993-8682; E-mail: ellardk@tc.gc.ca.
Note: Previously, anyone charged with a violation had their penalty
automatically appealed if they took no action. Under the new TATC rules this has
changed. Anyone violated must now apply for an appeal within 30 days of
notification of the offence.
(Ed. note: When TATC was first proposed COPA was concerned that the quality of
aviation representation would be somewhat lessened in a multi-modal Tribunal.
COPA has been assured by senior officials that the aviation representation on
the TATC will remain as at present.)