Decision No. 438-A-2012

November 15, 2012

APPLICATION by Transat A.T. Inc. for a review, pursuant to section 32 of the Canada Transportation Act, S.C., 1996, c. 10, as amended.

File No.: 
M4835-82-3

APPLICATION

[1] Transat A.T. Inc. (Transat) requests the Canadian Transportation Agency (Agency) to vary its Decision No. 426-A-2012 pursuant to section 32 of the Canada Transportation Act (CTA).

[2] In Decision No. 426-A-2012 (the Decision), the Agency approved, pursuant to paragraph 60(1)(b) of the CTA, the use by Sunwing Airlines Inc., of aircraft and flight crew provided by Travel Service, a.s., and the provision by Travel Service, a.s. of such aircraft and flight crew to Sunwing, to provide its non-scheduled international service from Toronto, Ontario, Canada and Dorval, Quebec, Canada to: St. Maarten, Netherlands Antilles; Roatan and La Ceiba, Honduras; Belize City, Belize; Panama City, Panama; Liberia and San Jose, Costa Rica; Puerto Plata and Punta Cana, Dominican Republic; and Cozumel, Mexico from November 8, 2012 to April 29, 2013; and to provide its scheduled international services on licensed routes between Canada and Jamaica, the Dominican Republic, Saint Lucia, Antigua and Barbuda, Barbados, Mexico, Cuba, Aruba, and the Bahamas, from November 8, 2012 to May 31, 2013, using aircraft and flight crew provided by Travel Service, a.s.

[3] The Agency acknowledged that based on the response to the October 19, 2012 Notice and issues raised by the parties, it would be both timely and beneficial to clarify the Agency’s approach to wet lease applications. In that regard, the Agency advised that it will initiate a consultation to seek the views of the industry and other interested parties regarding the intent of the wet lease approval requirements, and what should be considered, including information required by the Agency for its assessment of “necessity” under paragraph 8.2(3)(j) of the Air Transportation Regulations, SOR/88 58, as amended (ATR).

[4] Transat alleges that information which was not before the Agency when it made its Decision indicates that an entity other than Travel Service, a.s. has operational control over certain flights which Sunwing is marketing by way of the Agency’s wet lease authorization, contrary to the Agency’s Decision. On this basis, Transat requests that the Agency vary its Decision to limit its applicability so that it expires on December 15, 2012 instead of the dates provided for in the Decision. Further, Transat requests that the Agency direct Sunwing to immediately suspend any operations being conducted by Travel Service-Slovakia, and that the Agency direct Sunwing to inform the Agency as to which carrier(s) is/are in fact operating flights pursuant to the Decision.

[5] Transat further requests that the Agency conduct its consultation on an expedited basis, to be completed by December 15, 2012, to align with its proposed change that the approval expires on December 15, 2012.

ISSUE

[6] Has there been a change in facts or circumstances since the issuance of Decision No. 426‑A‑2012 which warrants a variance of that Decision?

SUBMISSION

[7] Transat alleges that one of the aircraft identified in Sunwing’s application to the Agency pursuant to paragraph 60(1)(b) of the CTA is registered to Travel Service-Slovakia. Transat points out that Travel Service, a.s. is related to Travel Service-Slovakia; however, they are separate carriers. Transat adds that Travel Service, a.s. holds a Canadian Foreign Air Operator Certificate while Travel Service-Slovakia does not.

[8] Transat maintains that Travel Service-Slovakia has custody and control of the aircraft in question and it maintains the foreign registration of the aircraft, and that the flights using this aircraft are being operated by Travel Service-Slovakia crew. Transat submits that as the Decision authorizes wet lease operations between Sunwing and Travel Service, a.s. only, the use of this aircraft is inconsistent with the Agency’s wet lease authorization.

LEGISLATIVE CONTEXT

[9] Pursuant to section 32 of the CTA:

The Agency may review, rescind or vary any decision or order made by it or may re-hear any application before deciding it if, in the opinion of the Agency, since the decision or order or the hearing of the application, there has been a change in the facts or circumstances pertaining to the decision, order or hearing.

[10] It is important to stress at the outset that the review process contemplated by section 32 of the CTA is not an appeal process. Parties wishing to appeal an Agency decision may proceed before the Federal Court of Appeal as per section 41 of the CTA.

[11] Nor is this process an open-ended authority for the Agency to review its decisions. The Agency’s jurisdiction under this section is limited and only arises if, in its opinion, there has been a change in the facts or circumstances pertaining to a particular decision since its issuance.

[12] Section 32 of the CTA outlines the statutory framework through which the Agency can exercise its power to review its decisions. The Agency is fully empowered to interpret the provisions of the CTA, its enabling legislation.

[13] A similar issue was ruled on by the Federal Court of Appeal in Kent v. Canada (A.G.), 2004 FCA 420 (Kent Decision). The Court confirmed a two-step approach to the determination of whether new facts are being presented to a tribunal in the context of a request for rescission or amendment of a decision. First, the proposed new facts must not have been discoverable, with due diligence, prior to the first hearing. If such is the case, then the tribunal must proceed to the second step and evaluate the materiality of the new facts, i.e., it must assess the importance of the proposed new facts to the merits of the claim. In the event that there are no new facts, the decision must stand.

[14] Although the Kent Decision relates to subsection 84(2) of the Canada Pension Plan, R.S.C. 1985, c. C-8, which refers to the introduction of “new facts” rather than “a change in facts and circumstances,” the Agency considers it nonetheless a source of guidance as to what can constitute a change in facts or circumstances.

[15] In dealing with an application for review, the Agency must first determine whether there has been a change in facts or circumstances pertaining to the decision. If no such change exists, the decision stands. If, however, the Agency finds that there has been a change in facts or circumstances since the issuance of the decision, it must then determine whether such a change is sufficient to warrant a review, rescission or variance of the decision. When another party was involved in the first hearing, the Agency may decide to open pleadings to ensure that all of the parties to the original decision are given the opportunity to address the issues, including the question as to whether there was a change in facts or circumstances since the issuance of the decision and the impact of the change on the matter.

[16] The Panel concludes that the wording of section 32 must generally be construed to include only facts or circumstances that were not in existence at the time of the original hearing or were undiscoverable by the applicant for review at that time. If a fact was known to the applicant or discoverable through exercise of due diligence at the time of the initial complaint, it cannot constitute a change in facts or circumstances. The text of section 32 expressly refers to new facts and circumstances arising “since the decision”.

[17] The burden of proof rests on the applicant requesting the review to provide the Agency with some substance and explanation demonstrating that the alleged change in the facts or circumstances has arisen since the decision. The applicant must also explain how the alleged change affects the outcome of the matter.

[18] A section 32 application is not the appropriate vehicle to introduce evidence that was known to or knowable by the applicant during the original application. It is not meant to provide losing parties an opportunity to complete the record or to re-argue a case. For the application to succeed, there must have been a real change in facts or circumstances since the original decision to justify a re-hearing. This must be weighed against the basic legal principle in favour of finality of decisions. This protects the other party, who has a legitimate expectation that a decision, once rendered, is final.

ANALYSIS AND FINDINGS

[19] In Decision No. 426-A-2012, the Agency approved Sunwing’s use of aircraft and flight crew provided by Travel Service, a.s. The Agency did not make any reference to specific aircraft as this is not a consideration under paragraph 60(1)(b) of the CTA or section 8.2 of the ATR. The Agency did, however, make its approval subject to the condition that Travel Service, a.s. retain operational control of the flights. In any event, even if the information provided by Transat concerning the care and control of the aircraft in question were true, this would not lead to a variance of the Decision.

[20] Transat has raised questions as to the operational control of the aircraft. These questions relate to a compliance matter as opposed to a new fact or circumstance that could lead to a variance of the Agency’s decision. As such, the Agency will deal with the compliance issue separately.

[21] In its application, Transat requests that the Agency abridge the period for which its approval is in effect, from the dates set out in the Decision to December 15, 2012 and that the Agency conduct its consultations on the scope of the wet lease provisions within this period. These requested remedies are not rationally connected to the issue of control and care of an aircraft. It appears to the Agency that Transat is attempting to use the information in question to reopen the Agency’s decision. This is not the purpose nor is it within the scope of a section 32 application.

CONCLUSION

[22] The Agency dismisses Transat’s request for a review pursuant to section 32 of the CTA of Agency’s Decision No. 426-A-2012.

Member(s)

Geoffrey C. Hare
Raymon J. Kaduck
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