Proceedings of the Standing Senate Committee on
Transport and Communications
Issue 17 - Evidence, November 21, 2001
OTTAWA, Wednesday November 21, 2001
The Standing Senate Committee on Transport and Communications met this day at 5:33 p.m. to examine Bill C-34, An Act to establish the Transportation Appeal Tribunal of Canada and to make consequential amendments to other Act.
Senator Lise Bacon (Chairman) presiding.
[Translation]
The Chairman: Today, we continue with our study of Bill C-34, to establish the Transportation Appeal Tribunal of Canada. Our study began yesterday with presentations from Transport Canada on the subject-matter of the bill and the government's reasons for introducing this draft legislation. This evening, we will be hearing from two witnesses, namely from representatives of the Shipping Federation of Canada and the Civil Aviation Tribunal.
When the committee examined Bill C-14 respecting shipping and navigation earlier this year, the Shipping Federation of Canada expressed some reservations about administrative penalties applicable to the shipping sector. The Shipping Federation would certainly have appreciated the opportunity to voice its concerns once again about this bill to the House of Commons Standing Committee on Transport and Government Operations. We are therefore delighted to have you present your views to this Senate committee. It is clear from your testimony on Bill C-14 that the Shipping Federation is opposed to administrative penalties and to the establishment of an Appeal Tribunal to oversee the process. I will let Ms Legars, the federation's representative, outline your organization's position more clearly.
Our second witness this evening represents the Civil Aviation Tribunal which was first established in 1986 and has operated quite successfully. Since the Transportation Appeal Tribunal would replace the Civil Aviation Tribunal and since the act would extend the new tribunal's jurisdiction to the marine and railway sectors, I am certain the witnesses will have some very useful information to share with us concerning the operations of their sector. As is customary, the presentations will be followed by a question period.
Our first witness, Ms Anne Legars, is the Director of Policy and Government Affairs for the Shipping Federation of Canada. Welcome, Ms Legars. You may begin your presentation, following which members will ask questions.
Ms Anne Legars, Director, Policy and Government Affairs, Shipping Federation of Canada: Honourable senators, thank you for inviting the Shipping Federation of Canada to share with your committee its views on Bill C-34.
The Federation, which was incorporated by an Act of Parliament in 1903, represents vessels trading to and from ports in Atlantic Canada, the St. Lawrence River and the Great Lakes. I just realized that this is precisely the map displayed in this room. The Federation also represents cruise vessels calling at these same ports. Our members represent 95 per cent of the industry and are listed at the end of our submission.
As you pointed out, Madam Chair, Federation representatives appeared before the committee last June during your study of Bill C-14, An Act respecting shipping in Canada. At the time, we expressed our concerns about the new administrative penalty regime instituted by the Act. We felt, as we still do, that the provisions amounted to a quasi-penal regime. We felt, as we still do today, that the procedural safeguards set out in the Canada Shipping Act as well as in the proposed Transportation Appeal Tribunal of Canada Act were inadequate.
Our concerns were shared by other stakeholders in the marine sector who testified before the committee. In addition, these same concerns were voiced by the committee in its sixth report on Bill C-14. Today, your committee is taking a closer look at the proposed new tribunal which will oversee this administrative penalty regime.
The department has tried to sell the Transportation Appeal Tribunal of Canada concept to the marine industry by claiming that it is an extension to other modes of the Civil Aviation Tribunal, with which the air industry is said to be very satisfied. In our estimation, this requires some clarification. Although the proposed tribunal will review the administrative penalties issues for all modes, the actual administrative penalty regimes applicable to each mode will be very different. As a matter of fact, the administrative penalty regime applicable to the rail mode is quasi-nonexistent, while the regime applicable to the air mode is much softer than that applicable to the marine mode. It is not surprising, then, that neither the rail nor the air mode has expressed any opposition to the proposed tribunal. However, the shipping industry has expressed strong concern.
[English]
Here is the general background on how the marine mode system will work. When there is an infraction of the Canada Shipping Act, or the Marine Transportation Security Act, the Department of Transport will have the option of either suing before the criminal courts, or the option of issuing a notice of violation. When a notice of violation is issued, the contravener is deemed to have committed the violation, unless he decides to appeal the departments' decision before the new tribunal.
This new tribunal will not have the same level of judicial independence as that enjoyed by the provincial courts, which currently adjudicate Canada Shipping Act penal cases, and tribunal members will not have the legal expertise that provincial courts have. Additionally, clause 15(1) of Bill C-34 states:
....the Tribunal is not bound by any legal or technical rules of evidence in conducting any matter that comes before itClause 15(5) states:
In any proceeding before the Tribunal, a party that has the burden of proof discharges it by proof on the balance of probabilities.It is the department that has the burden of proof. This is where our concerns lie concerning the proposed new tribunal.
These two provisions become especially worrisome when we consider the consequences of fighting a violation of maritime cases: there could be a fine of up to $25,000 and possibly double that amount in a number of cases, a public record for at least five years, and an impact on the renewal of insurance of Canadian marine documents. We believe these are quasi-penal consequences, and that they should be subject to more stringent procedural requirements than those provided under the proposed clause 15.
We submit that these provisions should be amended to provide that the tribunal should not receive or accept as evidence anything that would be inadmissible in a court of law, and when the minister has the burden of proof in any proceeding before the tribunal that burden must be discharged by proof beyond reasonable doubt, as is the case in penal matters.
Amending clause 15 is the most straightforward way to ensure that the minister will not gain unfair procedural advantage by electing to use the administrative penalty regime, rather than by going before the courts. That is our submission.
In its sixth report, this committee indicated its desire:
... to be reassured in its understanding that anyone assessed an administrative penalty would have (after appeal to the appeal tribunal) recourse to the courts to seek to overturn what they see as an unjust penalty.Actually, clause 21 of Bill C-34 states exactly the contrary:
A decision of an appeal panel of the Tribunal is final and binding on the parties to the appeal.As explained by transport in their presentation before the House Standing Committee on Transport, the decision of the tribunal cannot be appealed before the courts. The decision that could proceed to a court would be in the nature of a judicial review if the tribunal had gone beyond its jurisdiction in making a decision. Recourse to the courts would, therefore, be limited to exceptional circumstances.
Your committee may wish to amend clause 21 to allow an appeal before the Federal Court of Canada; we would certainly support such an initiative. However, we still believe that the amendment of clause 15 would be the best solution, because it would correct what we perceive as the most dangerous flaws of a new tribunal.
It would indirectly increase the potential scope of review of the tribunals' decisions by the Federal Court of Canada. In effect, it should be explicitly stated that the new tribunal should not receive or accept as evidence anything that would be inadmissible in a court of law, and that the department must meet its burden of proof on a without-doubt basis. In that way, the legislator would be opening the door to a possible review of the tribunals' decisions in cases where these requirements are not met, because such cases would amount to a jurisdictional error on the part of the tribunal.
[Translation]
The Chairman: Thank you, Ms Legars. It would appear your sector prefers the status quo as far as judicial procedures are concerned. Studies done by the government show that the low number of criminal charges and convictions are an indication not of the stringent observance of safety measures, but rather of the problems and costs involved in proving a party's guilt beyond a reasonable doubt. Would you care to comment on these findings?
Ms Legars: We stated our position quite clearly when we testified before the committee last June regarding the Canada Shipping Act. We are not opposed to the principle of administrative penalties. As an industry, we even introduced a similar regime for the St. Lawrence Seaway. The industry voluntarily agreed to an administrative penalty regime for any minor shipping offence committed in the St. Lawrence Seaway. Just so you know that the industry is not opposed to any kind of administrative penalty regime. In our opinion, such a regime can be quite useful in dealing with minor violations of a purely regulatory nature.
However, we also made it clear in June that the regime should apply only in the case of minor violations. When a company or an individual can be fined as much as $25,000 or even $50,000, we are no longer talking about a minor violation. When violations can remain in the public record for five years, that is five years after the last violation was committed, this is not minor either. That is the point we tried to make at the time. We are not opposed to the principle of an administrative penalty regime, provided its application be restricted to relatively minor violations.
In the matter at hand, the department has let it be known that all violations under the act would be subject to this regime. Regardless of the nature of the violation, the department would have the choice of either having the offender prosecuted in a regular court of law or of having the matter taken up before this administrative tribunal.
Our concern is that under this administrative penalty regime, the fines awarded could be substantial and have the same basis as the violations brought before the criminal courts. We are concerned that the department will have the option of choosing which regime it prefers, either the administrative penalty regime or the regular court of law. Basically, we are concerned about the process.
When we testified before the committee last June, we mentioned that there was an interesting precedent in the civil aviation sector. We suggested at the time that our administrative penalty regime be aligned with that of the civil aviation industry where prescriptions are shorter, violations remain in the public record for shorter periods of time, fines are smaller, and so forth. Parliament did no, however, follow up on our recommendation and therefore, we are left with the administrative penalty regime as set out in the bill. We are concerned about the new tribunal that will oversee the regime and about the fact that the bill contains few guidelines on how to conduct hearings. For instance, the tribunal is not bound by the rules of evidence. Consequently, the outcome of this process gives us some cause for concern.
The Chairman: If the evidence showed that the proposed administrative penalty regime improved safety, would you be in favour of it?
Ms Legars: Of course. As an industry, it is important for us to have a good safety record. If some vessel operators violate the rules, it is to the industry's greater advantage to see to it that everyone abides by the same rules and maintains the same standards. In that respect, we do not have a problem.
The Chairman: When you testified previously, you expressed some concern about the possibility of abuse of power and about the arbitrary nature of some of the findings made by inspectors. Are these instances of abuse widespread? If you could appeal to a tribunal quickly when you felt the penalty was unjustified, would this not effectively help put an end to reprehensible practices?
Ms Legars: Indeed it would. In fact, we do not object to the bill in its entirety. The possibility of appealing to a tribunal is a positive step.
Having said this, we would like to see amended the rules set out in clause 15 governing the hearings of the tribunal so that these more closely resemble legal rules, particularly as regards the burden of proof and rules of evidence. One of the concerns that we have is that the people called upon to examine the inspectors' findings will themselves be former industry members. While they will certainly have some technical knowledge, they may lack legal expertise. We have concerns about the use of hearsay, the burden of proof, and so forth, as well as about the lack of stringent procedures for reviewing these decisions.
The Chairman: You also have some reservations about clause 21 which stipulates that a decision of an appeal panel of the tribunal is final and binding on the parties to the appeal. Do you feel any need for other appeal mechanisms?
Ms Legars: We recommend the possibility of appealing the tribunal's decisions to the Federal Court. This is what we propose in our brief as a last resort. The most direct solution would be to amend clause 15 so that tribunal members are required to exercise more judicial control than provided for in the act.
If the legislator clearly states how he expects the tribunal to exercise its authority - that is with more judicial controls than currently set out in the legislation - and if the tribunal fails to do that, then the Federal Court could ultimately step in, not as part of an appeal process, but to exercise some judicial control. How the tribunal exercises its authority should be clearly spelled out. This would ensure much broader control a posteriori than if the legislator had failed to explain how the tribunal may exercise its authority. As the bill is now drafted, the tribunal enjoys considerable latitude to do just about anything it wishes.
[English]
Senator Callbeck: I understand that you are not against administrative sanctions.
Ms Legars: We are not.
Senator Callbeck: Would you accept this tribunal if it had the same rules of evidence as a court of law?
Ms Legars: Yes. We do not want two tracks; one that would give procedural advantages to the department while the consequences can be quite the same for the contravener in terms of fines, public record, and impact on the renewal of Canadian maritime documents.
Senator Callbeck: The other suggestion you made was to amend clause 21, so that it could be appealed to the Federal Court. If that were done, could there be a situation where a matter would involve marine, air and railway? We could amend this bill so that matters pertaining to marine go to the Federal Court.
Ms Legars: In our written submission, we propose an amendment to clause 21 by adding that in marine cases, there could be an appeal possible within 30 days before the Federal Court of Canada. As I reminded you in the beginning of my presentation, the administrative penalty regimes that are controlled and reviewed by the tribunal are not the same for each mode. The marine mode is the one that has the most stringent administrative penalty regimes. We submit that we could have an opening for an appeal before Federal Court of Canada.
I understand it to be strange to have a different avenue for the marine mode in this bill. I believe that amending clause 15 in the way that I have proposed would be the most straightforward solution to the problem.
Senator Callbeck: It is possible to have a situation that involves air, rail and marine? If the appeal if available for only the marine, would that create a problem?
Ms Legars: I cannot imagine a case where the three modes would be involved, because each of them is regulated under different acts. They would not be sued. The violation would not be issued under the same act each time. It would be under the Canada Shipping Act, the Aeronautics Act or the Railway Act. In each case, the act supporting the issuance of the penalty would be different, so I do not think you would have this problem.
Senator Callbeck: What about the penalties? You mentioned there is a big difference in the penalties, and that they are much higher in the case of marine. Do you accept that? Do you agree with the penalties that are set for these three different sections, or should there be more uniformity?
Ms Legars: The department told us that there would be different penalties for each mode, so they would have a kind of pool of members of a tribunal. Each member would have a specialty in a mode. A member would be chosen when needed, depending on the mode being tried. We are not afraid to have our cases discussed by aviation people. The department assured us that marine people would hear marine cases. I hope I am not mistaken.
Senator Callbeck: You do not have a problem the way the penalties are set, that they are much higher for marine than for railway?
Ms Legars: What do you mean?
Senator Oliver: The amount of the fine is higher.
Ms Legars: That is an issue that we discussed concerning the administrative regime that is applicable to our mode. We inserted a table in our brief last June. I can leave you a copy of that brief.
The comparison is between the marine mode and the air mode and shows the differences. If I remember correctly, one of the differences is that in the air mode, the maximum fine is $5,000 for an individual and $25,000 for a company.
For the marine mode, the maximum fine is $25,000 in each case, though it may be doubled in certain cases to go as high as $50,000. In addition, I believe the public record is maintained for two years for the air mode and five years for the marine mode. For the air mode, this contravention is removed from your record after two years. In the marine mode, your record is cleaned five years after the last contravention.
For our mode there is a provision that the burden of proof of a minister would be on a without-doubt basis. That is something that was not in the act. I understand that is something that has not been discussed before the courts to know what kind of standard would apply before the Civil Aviation Tribunal. It is different in the act; we had to meet a burden of proof on a balance of probabilities instead of a without-doubt basis.
Senator Callbeck: Are you satisfied with these fines and differences? Do you think the government should be working toward uniformity?
Ms Legars: We are not satisfied. I did not reopen the issue, because I thought it was something that was closed. Parliament actually adopted Bill C-14. We fought against it but we lost. If Parliament were ready to rethink the issue, we would applaud that, because we do not like the bill the way it is.
[Translation]
The Chairman: The costs associated with operating vessels are much higher and this provision impacts vessel operators. The costs are not the same.
Ms Legars: Theoretically, this reasoning could be applied to companies. However, no distinction should be drawn between ships' captains and professional pilots.
[English]
Senator Spivak: We were told that there was a great deal of consultation with all the stakeholders around this bill. Would you say that there was sufficient consultation with the marine industry? Were they not listened to? What is your view of the consultation?
Ms Legars: There was consultation for perhaps one year. There was consultation before the drafting and then the draft bill was circulated. We made the same comments to the department that we have made to you today. We asked for figures. We said that we did not understand the need and asked them to provide the figures. However, we were told that this bill was a matter of policy. They decided to go with it. They told us not to worry and that everything would be fine.
Senator Spivak: I understand that the Civil Aviation Tribunal operated in exactly under the same quasi-judicial manner, not in a totally judicial manner; is that correct?
Ms Legars: That is correct.
Senator Spivak: The aviation industry did not object to the Civil Aviation Tribunal, so I will assume that it has worked well.
I understand what you are saying and I am sympathetic because it does not seem that there is due process. That issue has been raised by one of the other members of the committee. What is the difference between the marine industry and the aviation industry in terms of process?
Ms Legars: Our submission is that the process must be linked with the regime that it monitors. The more harsh the regime, the more structured or court-like the structure should be.
Senator Spivak: The higher the penalty, the more structured should be the process. Since you have higher penalties, you should have a process that is more judicial. iIs that what you are saying?
Ms Legars: Yes.
Senator Spivak: You made that point to the people who were drafting this legislation. Is that correct?
Ms Legars: Yes, we made that point.
Senator Spivak: What was their argument to reject your position? How did they respond to you?
Ms Legars: They did not give an argument. They said that we did not have to worry.
Senator Spivak: I understand that. "Trust us," is not an argument.
Ms Legars: They said that our regime was not severe enough to open the door to more strict procedural requirements.
Senator Spivak: Do you have a written answer or response from the department that could help us to evaluate this?
Ms Legars: No, it was a round-table discussion where everybody gives their opinions.
[Translation]
Senator Gill: I would like to focus on the issue of sanctions and penalties. Setting aside for a moment bills C-34 and C-14, were violations subject to different penalties in the past? Were the penalties applicable in the case of marine offences different from those applicable to air or rail violations?
Ms Legars: The courts primarily heard cases involving conditions. Therefore, I believe the administrative penalty regime will apply mainly to cases involving safety concerns. As for the amount of the penalties, they were in the $25,000 range, depending on the case, but fines of $100,000 and over have been ordered in cases involving wide-scale pollution.
As I stated earlier, our industry does not have a problem with the principle of such a regime as such. We can appreciate how useful it can be for the legislation to apply to everyone. However, we would like to see more judicial controls in place.
Senator Gill: You have not answered my question. You say that in your estimation, the system provided for in the bill is more arbitrary and that you would prefer to see more judicial controls in place. Is that correct?
Ms Legars: Yes, that is correct. The government enacts laws and applies them. Now, it is imposing administrative penalties. That is all well and good, but we really need to have more controls in place.
Senator Gill: Rarely does someone call for more judicial controls. Usually, people demand fewer laws. You seem to be alone in wanting more controls.
Ms Legars: Criminal rules of procedure were not brought in solely to make lawyers happy. They exist to safeguard certain rights and to provide for certain hard and fast rules of evidence. A conviction can have significant repercussions. These safeguards are important in that they protect against arbitrary decisions.
Senator Gill: The existence of the tribunal does not preclude recourse to the courts. That possibility has always existed. You yourself stated that these cases did not always involve minor violations but that more often than not, they did. Recourse to the courts remains an option if a party is dissatisfied with a rule, sanction or penalty.
Ms Legars: To begin with, it is not an ordinary court of law, but rather the Federal Court that as a federal agency watchdog will eventually conduct a summary, limited review of jurisdictional matters. If the tribunal operates outside its jurisdiction, this has no bearing on the validity of the decision. If the law does not grant the power to intervene in a particular area, then the Federal Court will be able to step in. However, this power of review is very narrow. The tribunal is not like a regular court of law.
Senator Gill: You would like it to have broader powers of review?
Ms Legars: Yes, because the government also wields considerable authority over such matters. Parliament devises rules, implements them and to some extent, judges them as well. We would like to see a counterbalance of some kind, for instance, a procedural rule to protect the people in the system, one that would grant them, as a last resort, broader access to "real justices".
Ms Faye Smith, Chair and Chief Executive Officer, Civil Aviation Tribunal: It is pleasure to be here today to answer your questions concerning the Civil Aviation Tribunal.
[English]
Honourable senators, you have been provided with a copy of the tribunals' latest annual report. Therefore, I will try not to be repetitive and to deal with the issues that I think will be of concern to you.
The Civil Aviation Tribunal is a quasi-judicial body that was established on June 1, 1986 in accordance with Part IV of the Aeronautics Act. It followed upon the recommendations of Mr. Justice Charles Dubin in his report on his inquiry into aviation safety that followed an accident in Cranbrook.
The Dubin commission three-part report was published in 1982. The focus of the report was an enforcement program that provided the aviation community with the opportunity to have the enforcement and licensing decisions of the minister of transport reviewed by an independent body. Justice Dubin wanted to elevate the importance of aviation enforcement.
Before the Civil Aviation Tribunal, enforcement matters were heard in summary conviction courts of criminal jurisdiction in the provinces. Aside from the costs involved, this was often a long and protracted procedure with delays occasioned by the backlogs in the courts. It was a very formal procedure. It took longer, cost more, and took place in a criminal court.
By setting up a specialized quasi-judicial regulatory tribunal, the procedure was decriminalized, as is appropriate for contraventions relating to regulatory offences that are not truly criminal in nature. In its legislation, the Department of Transport reserves criminal court for very serious offences.
Administrative monetary penalties for less serious offences range from $5,000 for an individual to $25,000 for a company. For more serious offences, license suspension can be imposed. Shutting down the operation is the ultimate penalty.
In the system that existed prior to 1986 matters relating to licensing or qualifications, as opposed to enforcement, were heard under the old air regulations of that time: they were not heard by an independent body. If a document holder wanted a review the suspension of a pilots' licence the review would be made by someone in the Department of Transport. Even though there are many safeguards and guidelines built into such a system, the man on the street does not perceive it as a very independent review when it is done within the same department. That was Mr. Justice Dubin's point when he said an independent, impartial tribunal should be hearing and reviewing these suspensions.
The mandate of the Civil Aviation Tribunal, as set out in the Aeronautics Act, is to hear reviews at the first level and to hear appeals at the second level from those reviews. These decisions may include the imposition of monetary penalties, or suspension, cancellation or refusal to renew Canadian aviation documents on medical and other grounds.
The review and appeal hearings are held expeditiously and informally in accordance with the rules of fairness and natural justice, which involve the right of the individual or company to have a hearing before an unbiased and impartial hearing officer.
At the conclusion, the tribunal member may confirm the decision, substitute its own decision, or refer it back for reconsideration when it relates to qualification of licences.
The basic principles governing the tribunal are those of independence and expertise. The tribunal is a federal agency, independent of the Department of Transport. It is headed by a chair, who is also the chief executive officer and who is responsible for the supervision and direction of the work of the tribunal.
While the current and the proposed legislation provides for the appointment of full- and part-time members, there are currently only two full-time members of the tribunal; I am chair and Mr. Ogilvie, who is with me here today is the deputy chair of the tribunal. There are currently 22 part-time members who are appointed by reason of their knowledge and experience in aeronautics. In the proposed legislation, additional members would be appointed to hear matters related to other sectors of transportation.
Of the current 22 part-time members, six are doctors who are specialists in aviation medicine, and four of those doctors also have technical expertise because they are pilots. There are eight lawyers: two of these lawyers are currently serving as captains of a major airline, one lawyer is also a flight attendant, and four of them are practising aviation law. There is also a former airport authority board chairman, an aircraft maintenance engineer and six persons who have aviation pilot experience, either commercial or airline transport rated. We did have an air traffic controller, but we are waiting for our next one.
The members are appointed by a Governor in Council for their knowledge and experience in aviation or in proposed sectors, and these members have no particular interest in confirming the decisions of the minister. The members are appointed on a variety of criteria, including the location of the hearing. The hearings are held across Canada, usually where the incident or the contravention has taken place.The forum most convenient is used so that the witnesses can attend with the least amount of cost to the parties involved.
The members are appointed from the closest region, unless there is a conflict and in that case we move the members around. They are appointed for a variety of factors: their linguistic capabilities, aeronautical expertise, and residential location.
The tribunal is a small organization that has been in operation for 15 years. Besides the 22 part-time members and two full-time members, we have six staff members. That is our whole organization. Over the 15 years, we have on average worked on about 330 cases a year, and approximately 100 of those cases go to hearing. Many of the cases get settled along the way. Over the past number of months we have been promoting ADR and settlement in pre-hearing conferences to shorten the length of cases.
In proposing the establishment of an independent tribunal, Mr. Justice Dubin recommended the introduction of a broad range of administrative measures, and also the creation of a mechanism to uphold the rights against whom the measures were to be taken. We must assess what the tribunal has done in light of the latter recommendation.
In my view, the tribunal has provided an expeditious, cost effective mechanism for the review of the decisions of the Minister of Transport. The requirement for hearings to be held as informally and expeditiously as the rules of fairness and natural justice permit is an attempt to balance the competing consideration of a fair procedure for both parties against the necessity of a relatively quick and inexpensive procedure. In its last year of operation, the elapsed time between the conclusion of a review hearing and an issuance of a determination at the first level is approximately 30-50 days, and 40-65 days for an appeal decision after the appeal is heard.
Coming before the tribunal is also a cost-effective dispute mechanism. The informal procedure and simplified rules allow the document holder to represent himself or herself without counsel. However, representation by agent or counsel is certainly permitted. Each applicant, upon application, receives a copy of our guide to hearings and is provided with a copy of the rules. It is quite straightforward. There are no user fees for application. We are fortunate that we have been able to do that so far.
Our review of the tribunals' operations reveals two things. The tribunal appears to be relatively successful in expeditiously disposing of the matters that have come before it. It has certainly been more successful than the previous system. It also appears that the very existence of the tribunal as a forum for review of enforcement and licensing decisions has, in and of itself, created an environment for the resolution of matters between the Department of Transport and those that it regulates.
The Chairman: Thank you, Ms Smith. The Civil Aviation Tribunal has been described very positively with words such as "efficient," "effective," "non-legalistic" and even "user friendly." Do you think it will be possible to keep your organization small and efficient as you grow to accommodate two more modes of transportation? Have you made any recommendations to the government to achieve this?
Ms Smith: I do not think it will have a major impact simply because the members are all appointed on a part-time basis and are located across Canada. We would have relatively the same training for all of the members. I think it will be uncomplicated from that perspective. I also think our current computer system and forms will adapt very well to other modes of transportation. I do not see any major snags in adapting one to the other. We have considered that and talked to our computer people.
The Chairman: You did not feel the need to make any recommendations to the government to keep it small.
Ms Smith: They kept us informed of what they were doing along the way. As long as they give us enough money to train our people so they can conduct a proper hearing, that is the big thing for us.
The Chairman: Are you able to reassure those who need reassurance that an administrative penalties regime is neither arbitrary nor subject to abuse, and that a tribunal process that is final and binding does not offend the legal concept of due process?
Ms Smith: Due process, the principle of fairness and natural justice that governs our hearings, applies to all the parties that come before us. The best advice I could give would be for them to talk to some of the aviation associations and to canvass those who have given us very positive feedback over the past number of years.
The tribunal is not bound by its own decisions and there is no appeal from it. It is final and binding from that perspective. However, cases do go to the Federal Court. We might have 12 cases before the Federal Court at the current time.
The Chairman: Some stakeholders, in all three modes of transportation, advocate increased decision making authority for the tribunal, even including the authority to make a final decision in cases involving competencies and qualifications. What are your views on that suggestion of giving increased decision making authority to the tribunal?
Ms Smith: With the greatest of respect, I have views but, as head of the tribunal, I really cannot advance those views.
The Chairman: I tried.
Ms Smith: This issue has arisen annually, probably since 1986. I was around when the tribunal was set up. Yes, it has been argued many times. I have my view.
Senator Oliver: Are performance appraisals are done on your agency on a regular basis. Aave the people involved in the process been approached to find out what they think about it, and whether the process was efficient and so on? Has that been done, and is it done on a regular basis?
Ms Smith: We do not do performance appraisals or seek feedback in any formalized procedure, but we do have an annual seminar with all of the members, a representative of the Department of Transport, and a panel that is made up of all of the major aviations, such as COPA and ATAC. Everyone comes forward and airs their views. If they have any concerns, we attempt to remedy them. Usually, they do not have many concerns with the tribunal at all.
Senator Oliver: Your budget is modest and fair, but you have professional and special services totalling $231,000. Do you hire many experts or officials? What do those fees go to? That is the biggest amount of your budget.
Ms Smith: It is. That covers all of the per diems for the part-time members hearing the cases. It is a shocking number when you look at it.
Senator Oliver: It is not experts to give advice?
Ms Smith: The only experts we have are outside counsel.
Senator Oliver: Why not put per diems under salary and wages?
Ms Smith: That is what it is, but that is not quite the way it is classified. I appreciate the question, because it looks like we are hiring experts.
Senator Oliver: The report does not talk about ADR, but you mentioned it. You have an average of 330 cases, but only 100 go to hearings. Therefore, many are settled. Do you use actual mediation to mediate some of these disputes right at your headquarters on Laurier Avenue?
Ms Smith: We have requested and have received a very modest amount for ADR training. We are going to use it for case management for the registry. For ADR we hold teleconference calls and attempt to reduce a three-day hearing to a one-day hearing by reaching an agreement on some of the facts. Usually, the issues are easily determined once you get the parties talking.
Senator Oliver: Does that mean you do not have formal mediation where the parties sit down, either with or without counsel, to try to mediate a resolution to the issue?
Ms Smith: We are thinking that we will do that, because the stakes do get higher. We have cases now where the fines are cumulative and have reached $95,000 or more. There are instances where we will be doing that. That is part of a proposal that we are putting together. We want to get the parties talking, and then possibly assign a mediator who would, obviously, not be the member who heard the case if it should go to that.
Senator Oliver: In the $20,000, I saw some training. Would that training be for ADR mediation training for some of your staff?
Ms Smith: No, it does not come out of that. That is training for members. Eventually, we will have to allot. We have received, as I indicated, a small budget of $11,000 for ADR, to set up ADR programs.
Senator Oliver: In this new Bill C-34 tribunal, will most of your six staff stay on, and will your office stay at Laurier Avenue and so on?
Ms Smith: To the best of my knowledge, we would only add a few administrative people. We would operate with the current compliment and a few more people, possibly an in-house counsel. We are looking at some expansion, but it is not large.
Senator Oliver: Finally, how far away is your agency from government, and what is the interaction between you and the executive branch of government?
Ms Smith: We are at arm's length. We do not have interaction with the Minister of Transport. We report to Parliament, and the minister.
Senator Oliver: Your paycheques come from government. Is there any sort of weekly, ongoing communication?
Ms Smith: There is one person who is assigned to the Civil Aviation Tribunal from personnel in the Department of Transport, and a person in finance who processes the cheques and so forth. I personally do not see that as a problem because it is independent of the hearing process. The members hear the cases.
Senator Oliver: Those functions are administrative.
Ms Smith: Yes, and it is a question of our making a request for a cheque and it being mailed out to the member.
Senator Callbeck: We just heard the Shipping Federation call for the same rules of evidence as in a court of law. You have had experience with this tribunal. Do you think that is something the government should be looking at? Would it work?
Ms Smith: On a review of the cases that have come before the tribunal, the rules of evidence govern the admissibility of the documents of the evidence before the tribunal, what weight is applied to the documents, and clearly, it has not posed a problem. Our people are well trained in the receipt of evidentiary documents, for example. The difference between, our tribunal and a criminal court is that we would accept documents that would be hearsay, for example, that a court could not accept. No member would find a person culpable on the basis of a document that is purely hearsay, and that was not corroborated by other evidence. My answer is, on a review of the cases, we have not had any major complaints or concerns about the evidentiary process. We do have the Civil Aviation Tribunal rules, which indicate relatively strictly what may be admitted at the tribunal and how it is to be accepted and witnesses giving testimony. It is not an unregulated hearing.
Senator Callbeck: In other words, you do not see any need to call for what the Shipping Federation is asking for?
Ms Smith: No, but the quarrel of the Shipping Federation is with the minister.
The Chairman: Is there anything in this act that you think should not be here or anything you would like to see added?
Ms Smith: I have no concerns with the act as it is currently drafted. I have been consulted during the drafting of the act, and they listened to me on some things and not on others. I am not unhappy with the way it is. It is workable in the way that it currently works. It would continue to work.
Senator Callbeck: This new tribunal will be able to award costs. Is that something you feel is necessary? Is it something you were looking for in this new legislation?
Ms Smith: The most important aspect of the power to award costs under clause 19 is that the tribunal members would be given guidelines in respect to costs. Obviously, if someone comes before the tribunal and the assessment of monetary penalty is $150, there would not be costs awarded that would exceed that.
The most important aspect of clause 19 is in respect of adjournments. Many times people call and request an adjournment of a hearing at the last minute, and we do incur costs. As you know, we do not pass any costs along, but we do incur costs if we do not cancel our court reporters 48 hours in advance. Therefore, having the power to award costs and putting it in the guide to members, will simply mean that people give us the consideration of calling us and of cancelling. It is discretionary.
Frankly it will mean that people will not adjourn at the last minute so that we have incurred airfares flying across the country to hear a case or have hired court reporters. Sometimes the costs thrown away are $1,500, and there is no need of that.
That is one aspect of costs about which I am pleased. We would look at that with a great deal of caution.
Senator Callbeck: Do you have a backlog of cases?
Ms Smith: No. We have tried to have cases heard within a three-month time frame. Unless it becomes complicated and the parties request adjournment, we can usually keep that time frame. It is 90 days from a review to an appeal.
One of the amendments to the aeronautics legislation has been to increase the appeal period from 10 days to 30 days, so obviously that time frame will lengthen a bit because people do tend to appeal at the last minute. That may add 30 days.
Senator Callbeck: Are there many appeals?
Ms Smith: No. I think that last year we had maybe 20 appeals. We had 70 cases and maybe 20 appeals.
Senator Callbeck: Thank you.
[Translation]
Senator Gill: As a general rule, which party did the tribunal rule in favour of in the appeal process: the company or the Department of Transport?
Ms Smith: You want to know what percentage of cases?
[English]
Senator Gill: You have 20 cases on appeal?
Ms Smith: Yes.
Senator Gill: The entrepreneurs, I imagine, had reason. Were they right or wrong in their appeal?
[Translation]
Ms Smith: The tribunal ruled in favour of the Department of Transport in 70 per cent of the cases heard on appeal, while it came down on the side of individuals or companies in the remaining 30 per cent of cases.
[English]
Senator Gill: Of those 30 per cent, if the companies were right, what is the compensation because they lost money? I imagine they lost money if they did not have any permits or they lost their operation permits. There has to be an economic impact. Who is paying for that when the appeal is in favour of the entrepreneur or the company?
[Translation]
Ms Smith: If this falls under section 7.9 of the act, then there is a stay of suspension.
[English]
Ms Smith: There is a stay of the suspension.
Senator Gill: If the Department of Transport is wrong in its decision, and there is a financial impact for the company, who pays for the company's loss? The company has lost money. If you suspend the operation of two or three aircraft, the company is not making any money. Who is paying for the loss of the money? Who is covering that?
The Chairman: You want an answer in the case where they were still operating.
Ms Smith: If it is a suspension for immediate threat, it is an immediate shut down. However, if it is a suspension for failure to meet qualifications, the notice of suspension will have conditions for reinstatement.
First, the tribunal is obligated to set a hearing down as quickly as possible. That hearing will probably be within 14 days. The hearing can be held sometimes before the suspension actually takes place. It depends on the condition of reinstatement. It may well be the condition will be met, but they still want the tribunal to decide the issue of whether they had had to meet it.
Senator Gill: If you have two aircraft grounded the company is losing money. At the end of the process, the company could be right, and the Department of Transport could be wrong. You mentioned 15 days for the hearing, but 15 days is a long time for a company.
[Translation]
The Chairman: The suspension does not take effect immediately. The company can continue to operate.
[English]
Senator Gill: You are sure that the suspension can be reported?
Ms Smith: In a 6.9 suspension, yes. That is, if it is a suspension for enforcement reasons, but if it is a failure to meet qualifications, then it is up to the minister whether he wants to permit them to fly if they are not qualified.
Senator Callbeck: If the minister does prevent them from flying and there is a loss of business dollars, and it is appealed and the minister loses, is there any compensation for that company?
Ms Smith: I have no idea. Each case is decided on its facts, but it seems to me that where a document is suspended for safety reasons, it is a judgment call on the minister's part.
Those are the kinds of cases where the company and the ministry start talking. There are not too many of those cases that come before the tribunal. They start talking right away. If the minister gives notice that he has going to shut down your operation, you probably want to have a chat with some of his people to prevent that.
We do not see many of those kinds of cases. When some one is shut down, we hold the hearing as quickly as we can, which is the obligation of the tribunal. I can only speak to you from our perspective. Those questions are probably better responded to by the minister, and I hope I am not out of line by suggesting what I think would happen.
Senator Oliver: It is probably no different from being charged with a criminal offence and paying a lawyer $100,000 in fees and then getting off. You have no recourse. You cannot sue.
Senator Adams: I want to find out more about your organization. Can you tell me how the hours are logged for each aircraft and when the check-ups are done? How many days and flight hours are required? If it is not done by a log system how does it work?
Ms Smith: Are you asking about an aircraft that is flying with time-expired parts?
Senator Adams: No. I live in the North and I know that, every so many hours, the airplanes must be inspected.
Ms Smith: Like a 100-hour inspection?
Senator Adams: Yes. An airplane might be servicing Rankin Inlet regularly, but it must be flown into Winnipeg to have its inspection done. I am wondering who keeps track of the flying hours? Does someone from the Civil Aviation Tribunal check whether the airline companies are checking on that process?
Ms Smith: No, the tribunal would not deal with that. Only the inspectors deal with air-worthiness.
Senator Adams: What are the concerns of your organization? Do you check out the applications from companies that want to run new airlines?
Ms Smith: The application for a license to run an airline is sent to the Canadian Transportation Agency and they deal with the economic considerations. We hear cases that are appealed by reason of safety concerns and breaches of the air regulations.
Senator Adams: Do you have control over dangerous goods and that type of thing?
Ms Smith: I believe the CTA would deal with transportation of dangerous goods by air, although the legislation allows for designated provisions. It does not come to the tribunal.
The Chairman: Thank you, Ms Smith, for your presentation and for the answers you gave us.
Senators, we will meet again next Tuesday morning at 9:30.
The committee adjourned.