Judgments

[2001] 1 F.C. 138

T-882-99

Air Nunavut Ltd. (Applicant)

v.

The Minister of Transport (Respondent)

and

The Civil Aviation Tribunal (Intervener)

Indexed as: Air Nunavut Ltd. v. Canada (Minister of Transport) (T.D.)

Trial Division, Tremblay-Lamer J. — Ottawa, May 17 and July 11, 2000.

Air Law — Air carrier based at Iqaluit serving remote communities with two aircraft — Judicial review of Civil Aviation Tribunal’s dismissal of appeal from hearing officer’s determination upholding Minister’s suspension of air operator certificate — First notice of suspension issued for non-compliance with conditions of certificate pursuant to Aeronautics Act, s. 7.1(1)(b) (no full-time chief pilot) without prior notice to applicant — Second notice issued pursuant to same authority citing four violations — Described as superseding, replacing first notice — Hearing officer striking out second notice for non-compliance with Aeronautics Act, s. 7.1(2)(b) in that purported to take effect retroactively; confirming first notice of suspension — Appeal panel upholding first notice of suspension — Application allowed — (1) Within Tribunal’s jurisdiction to invalidate second notice of suspension — Determination of validity of suspension notice pre-condition to Tribunal’s jurisdiction to review Minister’s decision under s. 7.1 — Where deficiencies clearly identifiable on face of document, futile to proceed with hearing — Power existing by necessary implication — (2) Not open to Tribunal to hold first suspension valid — Minister intending second notice to replace, supersede first notice — First notice thus revoked — (3) Some form of prior notice, opportunity to respond required before notice operative — Factors enumerated in Baker v. Canada (M.C.I.) as relevant to determining requirements of common law duty of procedural fairness considered — General common law duty of public authorities to act fairly in making administrative decision affecting rights, privileges, interests of individuals — Severe financial impact on applicant’s business balanced against promotion of aviation safety — In circumstances, minimal duty of fairness required before suspending certificate.

Administrative Law — Judicial review — Certiorari — Minister suspending applicant’s air operator certificate for non-compliance with conditions thereof without giving applicant prior notice, opportunity to respond to concerns — Factors enumerated in Baker v. Canada (M.C.I.) as relevant to determining requirements of common law duty of procedural fairness (nature of decision, process, statutory scheme, importance of decision to individuals, legitimate expectations of person challenging decision) considered — Severe financial effect of suspension on applicant balanced against promotion of aviation safety — General common law duty of public authority to act fairly in making administrative decision affecting rights, privileges, interests of individuals — In circumstances, minimal duty of fairness required before suspending certificate.

This was an application for judicial review of the Civil Aviation Tribunal’s dismissal of an appeal from a hearing officer’s determination upholding the suspension of the applicant’s air operator certificate. Applicant is an air carrier based at Iqaluit which serves remote communities with two aircraft. The Minister of Transport issued a notice of suspension pursuant to Aeronautics Act, paragraph 7.1(1)(b) on the ground that the applicant did not employ an approved chief pilot on a full-time basis, and therefore no longer complied with the conditions of the certificate. The applicant was given neither prior notice of the suspension nor an opportunity to respond to any concerns the Minister may have had. A second notice of suspension, citing four violations, was issued pursuant to the same authority shortly thereafter. This new notice was described in an attached letter as superseding and replacing the first notice of suspension. At a review hearing before a member of the Tribunal, the second suspension notice was struck out on the ground that it did not comply with Aeronautics Act, paragraph 7.1(2)(b) in that it purported to take effect retroactively. The first notice of suspension was confirmed on the merits. An appeal panel concluded that the first notice of suspension was valid, holding that there was no requirement for the Minister to provide the applicant with notice of the proposed grounds for suspension and an opportunity to respond before issuing the notice of suspension. It also concluded that the requirements of fairness and natural justice were satisfied by the Tribunal’s hearing procedure established by the Act.

The issues were: (1) whether the Tribunal had jurisdiction to rule on the validity of the second suspension notice; (2) whether the first notice of suspension was valid; and (3) whether the principles of fairness and natural justice required the Minister to provide the applicant with prior notice and an opportunity to respond before issuing the first notice of suspension.

Held, the application should be allowed.

(1) The applicable standard of review with respect to the issue of whether the Tribunal had jurisdiction to strike out the second suspension notice was that of correctness. The Tribunal correctly struck out the second notice of suspension for failure to comply with statutory and regulatory requirements. If the issue of the validity of a notice arises during a hearing, it is within the Tribunal’s jurisdiction to deal with the issue. Such a determination is in fact a pre-condition to the Tribunal’s jurisdiction to review a Minister’s decision under section 7.1. Restricting the Tribunal’s powers to referring the matter back to the Minister for reconsideration where a notice of suspension is invalid would prevent the Tribunal from conducting any matter informally and expeditiously as the circumstances and considerations of fairness and natural justice permit in accordance with section 37. Where deficiencies can be clearly identified on the face of the document, it would be a futile and ineffective exercise to proceed with a hearing, knowing that the notice is invalid. Although the Act is silent on the subject, such a power exists by necessary implication. The Tribunal acted within its jurisdiction when it invalidated the second notice of suspension.

(2) The Tribunal exceeded its jurisdiction in holding that the first notice of suspension was valid. The Minister’s intention in issuing the second notice was clearly to replace and supersede the first notice. “Supersede” does not mean “to amend”. The first notice was, therefore, revoked as of the issuance of the second notice of suspension and thus was not in effect. It was not open to the Tribunal to declare that the second notice was in fact intended to amend the first notice.

(3) The question of whether a notice of suspension was issued in accordance with the principles of natural justice is not squarely within the Tribunal’s expertise relating to “aeronautics”. As a result, low deference should be afforded to the decision-maker. The standard of review was between “patently unreasonable” and “correctness”, or, with respect to this particular issue, reasonableness simpliciter.

The existence of the duty to act fairly is flexible, variable and depends on the circumstances. Baker v. Canada (Minister of Citizenship and Immigration) discussed the factors relevant to determining what is required by the common law duty of procedural fairness in a given set of circumstances. The first factor relates to the process under review: the more the process resembles judicial decision-making, the more likely the procedural protection will be closer to the trial model. The Minister’s decision to impose a suspension was not analogous to a trial model. The second factor is the nature of the statutory scheme. The Act confers on the Minister a discretionary power to impose a suspension of a Canadian aviation document when a holder no longer complies with conditions subject to which the document was originally issued. The exercise of this statutory discretion was dictated by concerns such as public safety. A third factor is the importance of the decision to the individuals affected. The greater the impact, the more stringent procedural protection is required. The Minister must balance the severe financial effect the suspension of the Canadian aviation document has on the applicant, with the promotion of aviation safety. Although the Act does not require prior notice before the issuance of the suspension notice, every public authority has a general common law duty to act fairly in making an administrative decision which is not legislative in nature and which affects the rights, privileges or interests of individuals. A temporary suspension will adversely affect the business of the applicant as well as inconvenience passengers booked to travel with it. Therefore, as there was no immediate threat to aviation safety, a chief pilot application was pending, there was confusion regarding whether the applicant’s chief pilot was on site or not, and given the potential negative impact on the applicant’s livelihood, a minimal duty of fairness was required before suspending the certificate. Procedural fairness required that the Minister afford the applicant some form of notice and opportunity to respond before the notice became operative. It was not reasonable for the Tribunal to conclude that there was no requirement for the Minister to provide the applicant with notice of the proposed grounds for suspension and an opportunity to respond before issuing the notice of suspension.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Aeronautics Act, R.S.C., 1985, c. A-2, ss. 6.9 (as am. by R.S.C., 1985 (1st Supp.), c. 33, s. 1; S.C. 1992, c. 1, s. 5), 7 (as am. by R.S.C., 1985 (1st Supp.), c. 33, s. 1; S.C. 1992, c. 1, s. 5), 7.1 (as am. by R.S.C., 1985 (1st Supp.), c. 33, s. 1; S.C. 1992, c. 1, s. 5; c. 4, s. 15), 37 (as enacted by R.S.C., 1985 (1st Supp.), c. 33, s. 5).

Canada Transportation Act, S.C. 1996, c. 10, s. 57.

Canadian Aviation Regulations, SOR/96-433, ss. 103.03, 103.06(3)(a),(b).

CASES JUDICIALLY CONSIDERED

APPLIED:

Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; (1990), 69 D.L.R. (4th) 489; [1990] 3 W.W.R. 289; 83 Sask. R. 81; 43 Admin. L.R. 157; 30 C.C.E.L. 237; 90 CLLC 14,010; 106 N.R. 17; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22.

REFERRED TO:

U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; (1988), 35 Admin. L.R. 153; 95 N.R. 161; Bell Canada v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 1 S.C.R. 1722; (1989), 60 D.L.R. (4th) 682; 38 Admin. L.R. 1; 97 N.R. 15.

AUTHORS CITED

Black’s Law Dictionary, 5th ed. St. Paul, Minn.: West Publishing Co., 1979. “replace”, “supersede”.

Shorter Oxford English Dictionary on Historical Principles, 3rd ed. Oxford: Clarendon Press, 1978. “replace” “supersede”.

APPLICATION for judicial review of the Civil Aviation Tribunal’s dismissal of an appeal from a hearing officer’s determination upholding the Minister’s suspension of the applicant’s air operator certificate without giving the applicant prior notice or an opportunity to make representations (Air Nunavut Ltd. v. Canada (Minister of Transport), [1999] C.A.T.D. No. 24 (QL)). Application allowed.

APPEARANCES:

Martha A. Healey for applicant.

J. Sanderson Graham for respondent.

Martine M. Richard for intervener.

SOLICITORS OF RECORD:

Ogilvy, Renault, Ottawa, for applicant.

Deputy Attorney General of Canada for respondent.

Borden, Elliot, Scott & Aylen, Ottawa, for intervener.

The following are the reasons for order rendered in English by

[1]        Tremblay-Lamer J.: This is an application for judicial review of a decision (the appeal decision) of the Civil Aviation Tribunal (the Tribunal) dated April 13, 1999 [[1999] C.A.T.D. No. 24 (QL)]. In its appeal decision, the Tribunal dismissed the applicant’s appeal of a determination made by the hearing officer in CAT File No. C-1705-10/MOT File No. 5258-5343, upholding the decision of the Minister of Transport to suspend the applicant’s air operator certificate effective November 7, 1998.

THE FACTS

[2]        Air Nunavut, an air operator with its base of operations in Iqaluit in the Nunavut Territory, provides domestic and international air charter services from Iqaluit to northern and remote communities both in and outside of Canada. Air Nunavut currently operates a fleet of two aircraft and holds air operator certificate 7096 (the certificate) issued under the Canadian Aviation Regulations[1] (the Regulations) enacted pursuant to the Aeronautics Act[2] (the Act).

[3]        On November 6, 1998, the Minister issued a notice of suspension[3] (the first suspension notice) pursuant to paragraph 7.1(1)(b) [as am. by R.S.C., 1985 (1st Supp.), c. 33, s. 1; S.C. 1992, c. 4, s. 15] of the Act suspending the applicant’s air operating certificate effective November 7, 1998 at 00:01 hours. The ground for the suspension was that Air Nunavut did not employ an approved chief pilot on a full-time basis and therefore no longer complied with the conditions subject to which the certificate has been issued. Air Nunavut was given no prior notice of the suspension and was not given the opportunity to respond to concerns it may have had. The notice stated in part:

Air Nunavut Ltd. no longer complies with the conditions subject to which the document was issued.

Air Nunavut Ltd. no longer complies with subsection 704.07(2) of the Canadian Aviation Regulations in that the company does not employ on a full time basis a Chief Pilot approved by the Minister pursuant to 704.07(2), (b), (ii), of the Canadian Aviation Regulations.[4]

[4]        As conditions for reinstatement of the certificate, the Minister required that Air Nunavut employ an approved chief pilot on a full-time basis and demonstrate to the satisfaction of the Minister that it met all the requirements for holding an air operator certificate.

[5]        On November 9, 1998, the applicant requested a review of the suspension by the Tribunal.

[6]        On November 13, 1998, the Minister issued a second notice of suspension[5] which he described, in an attached letter, as superseding and replacing the first notice of suspension issued on November 6, 1998. The second notice of suspension was issued pursuant to the same statutory authority as the first notice of suspension and cited four violations of the conditions of the certificate: failure to employ a chief pilot; failure to employ a maintenance manager; failure to employ an operations manager; and failure to complete company indoctrination training, line indoctrination training and initial and annual training for flight crew members.

[7]        The applicant requested a review of the second notice of suspension on November 13, 1998.

REVIEW HEARING[6]

[8]        On November 20, 1998, a review hearing was held before a member of the Tribunal. A motion, brought by the applicant to strike the second suspension notice was granted on the ground that it did not comply with the requirements of paragraph 7.1(2)(b) [as am. by R.S.C., 1985 (1st Supp.), c. 33, s. 1] of the Act in that it purported to take effect retroactively.

[9]        A second motion brought by the applicant seeking to strike the first notice of suspension on the ground that it could not have immediate effect and, in any event, could not have effect without prior notice, was dismissed by the member. He concluded that section 7.1 of the Act authorizes a suspension having immediate effect.

[10]      As to the merits of the Minister’s decision, the member concluded that at the time of the suspension, the applicant no longer had a chief pilot employed on a full-time basis performing the functions of that position. Given that this is a violation of the general conditions of the applicant’s air operator’s certificate, the member confirmed the decision of the Minister.

APPEAL HEARING[7]

[11]      An appeal hearing before a three-member panel of the Tribunal was held on February 15, 1999. The appeal panel rendered its determination on April 13, 1999.

[12]      The panel concluded that the first notice of suspension was valid notwithstanding that the second notice of suspension did not conform to the statutory requirements for notices:

At review the Tribunal correctly rejected the Notice dated November 13^th as invalid and proceeded on the basis of the November 6^th Notice. Whatever the intention of its drafter, the document dated November 13^th was void on its face and that failure cannot be said to ouster or render invalid the legally constituted document of November 6^th which was in the hands of the Tribunal for review at the request of the Applicant on November 9^th. In conclusion, the Tribunal is of the view that the November 6^th Notice was a proper notice under the Act and was in effect at the time of the review hearing.[8]

[13]      On the issue of whether the applicant had been denied natural justice and procedural fairness in the decision of the Minister to suspend the certificate, the panel held that there was no requirement for the Minister to provide the applicant with notice of the proposed grounds for suspension and an opportunity to respond before issuing the notice of suspension. The panel also concluded that the requirements of fairness and natural justice were satisfied by the Tribunal hearing procedure established by the Act.

ISSUES

1.         Whether the Tribunal erred in concluding that (a) the second notice of suspension was invalid and in striking out that notice; and (b) that the first notice of suspension was valid, notwithstanding the invalidity of the second notice;

2.         Whether the Tribunal erred in concluding that the Minister was not required by the principles of fairness and natural justice to provide Air Nunavut with additional notice and an opportunity to respond before issuing the first notice of suspension.

POSITION OF PARTIES

[14]      The applicant submits with respect to the first issue that the Tribunal’s authority on review and appeal, is limited to either confirming a suspension or referring the matter back to the Minister for reconsideration, and it therefore has no authority to either revise the Minister’s decision, or give the decision the Minister should have given. As a result, with respect to the validity of the suspension notices, the applicant contends that given that the second suspension notice was intended to supersede and replace the first suspension notice, the invalidity of the second suspension notice should bring about the invalidity of the first notice. In other words, the applicant submits that it is beyond the jurisdiction of the Tribunal to revive the first suspension notice since the Minister’s intention was to replace it by the second suspension notice.

[15]      In regard to the second issue, the applicant submits that the Tribunal erred in law by concluding that the applicant was not entitled to some form of notice and opportunity to respond before the notice of suspension was issued or became effective. The authority of the Minister is not limited only by obligations of procedural fairness at the level of review or appeal; the Minister must act fairly in exercising his statutory discretion to suspend a Canadian aviation document.

[16]      The respondent’s position with respect to the first issue is that the Tribunal erred in law and exceeded its jurisdiction by ruling on the validity of the notices of suspension and striking out the second notice of suspension.

[17]      In the alternative, the respondent contends that if the Tribunal did have jurisdiction to strike out the second notice of suspension, it did not err in concluding that the first notice of suspension was valid.

[18]      With respect to the second issue, the respondent submits that the Tribunal did not err in concluding that the Minister was not required to provide the applicant with notice of his proposal to suspend the air operator certificate before issuing the first notice of suspension; the regulatory nature of the Minister’s decision, the statutory context in which it must be made and the Minister’s overriding duty to promote aviation safety in the public interest all indicate that procedural rights do not arise before a suspension comes into effect; thus the Tribunal, a specialized panel in the area of aviation safety, did not commit a reviewable error.

[19]      On the other hand, the intervener, who intends only to address this Court on the first issue within this application, submits that the powers conferred on the Tribunal by the Act include not only those expressly granted, but also, by implication, all powers which are necessary for the proper carrying out of the Tribunal’s duties, including, the power to rule on the validity of a notice of suspension.

ANALYSIS

1.         Remedial Jurisdiction of the Tribunal

[20]      In addressing this first issue, it may be helpful to canvass the powers of the Tribunal, as outlined in the Act. In order to operate air travel services, a person must hold a Canadian aviation document issued pursuant to the Transportation Act.[9]

[21]      The Tribunal’s mandate is to give the aviation public the opportunity to appeal administrative decisions that affect licences or impose penalties under the Act.

[22]      Sections 6.9 [as am. by R.S.C., 1985 (1st Supp.), c. 33, s. 1; S.C. 1992, c. 1, s. 5], 7 [as am. by R.S.C., 1985 (1st Supp.), c. 33, s. 1; S.C. 1992, c. 1, s. 5] and 7.1 [as am. by R.S.C., 1985 (1st Supp.), c. 33, s. 1; S.C. 1992, c. 1, s. 5; c. 4, s. 15] of the Act provide the basis upon which the Minister may suspend or cancel a Canadian aviation document.

[23]      Pursuant to subsection 7.1(6) of the Act, a member of the Tribunal assigned to conduct a review of a decision of the Minister to suspend or cancel a Canadian aviation document must provide the Minister and the holder of the document with a full opportunity consistent with procedural fairness and natural justice to present evidence and make representations in relation to the suspension under review.

[24]      Upon concluding the review under section 7.1 of the Act, the Tribunal member may determine the matter by confirming the suspension or by referring the matter back to the Minister for reconsideration as prescribed by subsection 7.1(8) of the Act.

[25]      The decision of a Tribunal member may then be further appealed. Subsection 7.2(5) of the Act provides:

7.2 …

(5) The Tribunal may dispose of an appeal from the determination of a member of the Tribunal under

(b) subsection 7.1(8), by dismissing it or referring the matter back to the Minister for reconsideration.

[26]      In the present case, the suspension of the air operator certificate at issue was effected in accordance with paragraph 7.1(1)(b) of the Act which provides:

7.1 (1) Where the Minister decides

…

(b) to suspend or cancel a Canadian aviation document on the grounds that the holder of the document is incompetent or the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to have the qualifications necessary for the issuance of the document or to meet or comply with the conditions subject to which the document was issued, or

…

the Minister shall, by personal service or by registered mail sent to the holder or to the owner or operator of the aircraft, airport or facility, as the case may be, at the latest known address of the holder, owner or operator, notify the holder, owner or operator of the Minister’s decision. [Emphasis added.]

[27]      The form and content of a notice of suspension are prescribed by the Act and the Regulations. Among other things, the notice must indicate, as the case requires: (1) the conditions subject to which the document was issued that the Minister believes are no longer met or complied with; (2) the effective date of the suspension and; (3) the conditions under which the suspension will be terminated.[10]

[28]      It is important to note that contrary to a notice of suspension issued under section 6.9 of the Act, when a suspension is imposed pursuant to section 7.1, no waiting period is prescribed before a suspension takes effect. When a document is suspended, the person to whom it was issued must return it to the Minister immediately upon the effective date of suspension.[11]

[29]      The respondent submits that in light of this statutory scheme, the Tribunal does not have the jurisdiction to declare whether a notice of suspension is valid or not. In fact, according to the respondent, the Tribunal can do no more than refer it back to the Minister for reconsideration.

[30]      For his part the applicant does not contest the remedial authority of the Tribunal to strike a notice of suspension, but rather takes issue with the Tribunal’s remedial authority to interpret the rationale behind the second suspension notice, namely, that it was intended to amend the first notice and not replace or rescind the first notice.

[31]      The applicable standard of review for the judicial review with respect to the first issue is that of correctness, in so far as it hinges on the question of whether or not the Tribunal has acted without or beyond its jurisdiction in striking out the second suspension notice issued by the Minister.[12]

[32]      In my opinion, the Tribunal did not err by granting the motion brought by the applicant to strike out the second notice of suspension for failure to comply with statutory and regulatory requirements governing the issuance of a notice of suspension.[13]

[33]      I agree with the argument advanced by the intervener, that if during a hearing the issue arises as to whether a notice issued by the Minister is valid, the Tribunal is acting within its jurisdiction in dealing with the issue. I am of the view that a determination of the validity of a notice of suspension is in fact a pre-condition to the Tribunal’s jurisdiction to review a Minister’s decision under section 7.1 of the Act.

[34]      To restrict the powers of the Tribunal to referring the matter back to the Minister for reconsideration where a notice of suspension is invalid, would be to prevent the Tribunal from conducting any matter informally and expeditiously as the circumstances and considerations of fairness and natural justice permit in accordance with section 37 [as enacted by R.S.C., 1985 (1st Supp.), c. 33, s. 5] of the Act.

[35]      Where deficiencies can be clearly identified on the face of the document, such as in the present case, it would be a futile and ineffective exercise to proceed with a hearing, knowing that the notice is invalid.

[36]      Although the Act is silent on the subject, I am of the opinion that such a power exists by necessary implication.

[37]      Indeed, the Supreme Court of Canada confirmed in Bell Canada,[14] that the powers of an administrative tribunal may exist by necessary implication.

[38]      I am thus satisfied that in order to fulfill its mandate efficiently, the Tribunal acted within the confines of its jurisdiction when it invalidated the second notice of suspension.

[39]      However, the Tribunal did not simply hold that the second notice was invalid; it also examined the validity of the first notice of suspension and held it to be valid.

[40]      With respect to this issue, counsel for the respondent submits that the Tribunal acted within its jurisdiction given that the first notice of suspension was never actually withdrawn and was thus revived as a consequence of the invalidity of the second notice.

[41]      I disagree with counsel for the respondent.

[42]      A reading of the Minister’s letter accompanying the second notice clearly indicates that the intention of the Minister in issuing the second notice was to replace and supersede the first notice.

[43]      As submitted by the applicant, in all the dictionary definitions, the word supersede does not mean “to amend”:

Supersede: Obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal…. To set aside, render unnecessary, suspend or stay. [Black’s Law Dictionary, 5^th ed.]

Supersede: … 1) To desist from, discontinue (a procedure, an attempt, etc.); not to proceed with. To desist, forbear, refrain. 2) To refrain from (disclosure, disquisition); to omit to mention, refrain from mentioning. 3) To put a stop to (legal proceedings, etc.); to stop, stay. Law. To discharge by a writ of supersedeas. 4) To render superfluous or unnecessary. 5) To make of no effect; to render void, nugatory, or useless; to annul; to override. 6) To be set aside as useless or obsolete; to be replaced by something regarded as superior. 7) To take the place of (something set aside or abandoned); to succeed to the place occupied by; to serve, be adopted or accepted instead of. 8) To supply the place of (a person deprived of or removed from an office or position) by another; also to promote another over the head of; to be removed from office to make way for another; to supply the place of (a thing). [Underlining added.] [Shorter Oxford English Dictionary, 3^rd ed.]

Replace: To place again, to restore to a former condition…. Term, given its plain, ordinary meaning, means to supplant with substitute or equivalent…. To take the place of. [Underlining added.] [Black’s Law Dictionary, 5^th ed.]

Replace: … 1) To restore to a previous place or position; to put back again in a place, 2) to take the place of, become a substitute for (a person or thing), 3) to fill the place of (a person or thing) with or by a substitute, to provide or procure a substitute or equivalent in place of (a person or thing). [Shorter Oxford English Dictionary, 3^rd ed.]

[44]      Therefore, I am of the opinion that the first notice was revoked as of November 13, 1998, and was thus not in effect.

[45]      It was not open to the Tribunal to second-guess the Minister’s intention and declare that the second notice was in fact intended to amend the first notice. This goes well beyond the jurisdiction of the Tribunal.

2.         Duty of Fairness

[46]      Counsel for the respondent submits that in regard to decisions within the jurisdiction of the Tribunal the applicable standard of review is patent unreasonableness. He argues that because the Tribunal decisions are protected by a privative clause and because tribunal members must have knowledge and experience in aeronautics, the Court should have a high degree of deference.

[47]      Although I recognize the expertise of the Tribunal in matters relating to “aeronautics”, the question of determining whether a notice of suspension was issued in accordance with the principles of natural justice does not fall squarely within the expertise of the Tribunal. As a result, low deference should be afforded to the decision-maker. In such a case, I find the standard of review to fall in the middle of the spectrum between “patently unreasonable” and “correctness”. Thus, the appropriate standard with respect to this particular issue is reasonableness simpliciter.

[48]      Counsel for the applicant submits that the Tribunal erred in law by concluding that the applicant was not entitled to some form of notice and opportunity to respond before the notice of suspension was issued or became effective.

[49]      The respondent argues that the Minister was not required to provide Air Nunavut with prior notice of his decision to suspend the air operator certificate. According to counsel for the respondent, the holder has the opportunity to challenge a decision suspending an air operator’s certificate by requesting a review by the Tribunal. And at this stage only, counsel for the respondent argues, the holder will be afforded a full opportunity to be heard.

[50]      Further, counsel for the respondent advances that the scheme of the Act implies that urgent administrative action (such as suspensions of a document) which is necessary to maintain aviation safety must not be delayed by notice or hearing requirements.

[51]      The Supreme Court of Canada in Knight v. Indian Head School Division No. 19[15] has stated that the existence of the duty to act fairly is flexible, variable and depends on a variety of circumstances. More recently, in Baker v. Canada (Minister of Citizenship and Immigration),[16] the Supreme Court of Canada discussed the factors recognized in jurisprudence as relevant to determining what is required by the common law duty of procedural fairness in a given set of circumstances, inter alia, the nature of the decision being made and the process followed in making it, the nature of the statutory scheme, the importance of a decision to the individuals affected and the legitimate expectations of the person challenging the decision.

[52]      I will now apply these factors to the case at bar.

[53]      The first factor relates to the process under review: the more the process resembles judicial decision-making, the more likely the procedural protection will be closer to the trial model. In the present case the decision of the Minister to impose a suspension is not analogous to the trial model.

[54]      A second factor is the nature of the statutory scheme. The Act confers on the Minister a discretionary power to impose a suspension of a Canadian aviation document when a holder no longer complies with conditions subject to which the document was originally issued. The exercise of this statutory discretion is dictated by concerns such as public safety.

[55]      A third factor is the importance of the decision to the individuals affected. The greater the impact, the more stringent procedural protection is required. In the present case, the Minister has to balance the severe financial effect the suspension of the Canadian aviation document has on the applicant, with the promotion of aviation safety.

[56]      Although it is true that the Act does not require prior notice before the issuance of the suspension notice, it is trite law that there exists a general common law duty to act fairly on every public authority making an administrative decision which is not legislative in nature and which affects the rights, privileges or interests of individuals. Cognizant that the holding of a certificate is not a right, I am of the view nevertheless, that a temporary suspension will adversely affect the business of the document holder as well as inconvenience passengers booked to travel with Air Nunavut.

[57]      Therefore, considering that there was no immediate threat to aviation safety, that a chief pilot application was pending, that there was confusion regarding whether the applicant’s chief pilot was on site or not, and given the potential negative impact on the applicant’s livelihood, I am of the view that a minimal duty of fairness was required before suspending the certificate.

[58]      I believe that procedural fairness requires that the Minister afford the applicant, Air Nunavut, some form of notice and opportunity to respond before the notice becomes operative. In fact, providing the applicant with notice of a forthcoming suspension, in writing or in person, Air Nunavut would have the opportunity to react, thus satisfying both the Minister’s concerns for air safety, as well as the applicant’s concerns with respect to its operations.

[59]      Thus, I am of the opinion that it was not reasonable for the Tribunal to conclude that there was no requirement for the Minister to provide the applicant with notice of the proposed grounds for suspension and an opportunity to respond before issuing the notice of suspension.

[60]      For these reasons, the application for judicial review is allowed. The decision of the appeal panel of the Civil Aviation Tribunal is set aside, the decision of the Minister to suspend Air Nunavut’s air operator certificate is quashed. The whole with costs.

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