Decision No. 488-C-A-2010

November 30, 2010

File No. M4120-3/10-01239

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[1] This Decision deals with two distinct issues:

1. a request under section 14 of the Canadian Transportation Agency General Rules, SOR/2005‑35 (General Rules) to amend the application under section 32 of the Canada Transportation Act (CTA) for review of Decision No. 57-C-A-2010.
2. an application under section 32 of the CTA to review Decision No. 57-C-A-2010 (Initial Decision).

BACKGROUND

[2] In the Initial Decision dated February 18, 2010, the Canadian Transportation Agency (Agency) dismissed Dr. Fowlie's complaint with respect to Air Canada's refusal to transport him on Flight AC195 from Montréal, Quebec to Vancouver, British Columbia on March 22, 2009. Air Canada had refused said transport due to what it considered was prohibited conduct (or unruly behaviour) on the part of Dr. Fowlie on Flight AC871 from Paris, France, to Montréal earlier that day. The Agency found that Dr. Fowlie "[...] engaged in abusive and offensive behaviour during Flight AC871" and that he "[...] failed to discharge the burden of proving that Air Canada did not properly apply the terms and conditions [pertaining to prohibited conduct by a passenger and refusal to transport] set out in Rule 25 of its [International Passenger Rules and Fares] Tariff [NTA(A) No. 458]."

[3] On March 1, 2010, Dr. Fowlie filed with the Agency an application for review of the Initial Decision in accordance with section 32 of the CTA (Original Application for Review).

[4] On March 9, 2010, the Agency received a request from Dr. Fowlie for non-publication of his name in the Initial Decision. On April 16, 2010, Dr. Fowlie was informed that the Agency would place his section 32 application on hold pending the determination of his request for non‑publication of his name. On July 7, 2010, the Agency issued Decision No. 289-C-A-2010 dismissing Dr. Fowlie's request for non-publication of his name. The Agency found that Dr. Fowlie did not meet the evidentiary threshold and did not establish, on a balance of probabilities, the need for a non-publication order. In the same Decision, the Agency asked Dr. Fowlie to advise it as to whether or not he wished to pursue his section 32 application.

[5] The Agency reactivated the Original Application for Review on July 19, 2010.

[6] Before addressing the substantive matter of this application for review, the Agency will deal with Dr. Fowlie's request to amend his Original Application for Review.

I. PRELIMINARY MATTER: REQUEST UNDER SECTION 14 OF THE GENERAL RULES TO AMEND THE ORIGINAL APPLICATION FOR REVIEW

[7] On July 22, 2010, Dr. Fowlie advised the Agency that he wished to submit further submissions and material before the Agency in support of the Original Application for Review. Following receipt and its consideration of the submissions filed by both parties with respect to this request, the Agency issued Decision No. LET-C-A-135-2010 on August 16, 2010, in which it informed Dr. Fowlie that it considered the Original Application for Review to be a complete application for review, and that requests to amend submissions must be made in accordance with section 14 of the General Rules. The Agency also advised Dr. Fowlie that he should include with his request copies of all additional evidence he planned to bring forward in support of his proposed amended submissions, as well as explanations as to the admissibility of this new evidence in the context of a section 32 proceeding.

[8] On August 20, 2010, Dr. Fowlie filed a request under section 14 of the General Rules to amend his Original Application for Review. This request was accompanied by amended submissions in support of Dr. Fowlie's application for review.

Issue

[9] Should the Agency allow Dr. Fowlie's request to amend his Original Application for Review?

Submissions

Dr. Fowlie

[10] At the outset, Dr. Fowlie indicates that following the filing of his Original Application for Review, he retained legal counsel and that he was subsequently able to formulate more comprehensive submissions and arguments in support of his application.

[11] Dr. Fowlie argues that his amended submissions do not raise new issues, but merely better elucidate the issues raised in the Original Application for Review. Dr. Fowlie notes that these issues relate to:

1. newly available eyewitness evidence bearing directly on the findings of fact and credibility on which the Initial Decision was based; and
2. the question as to whether Air Canada discharged its onus of proof under Article 19 of the Montreal Convention with respect to its liability to Dr. Fowlie as a consequence of what he considers was a flight delay.

[12] Dr. Fowlie maintains that his ability to fully illustrate and argue the issues raised in his application for review and to assist the Agency in analyzing the new evidence will be seriously undermined if submissions are limited to the material he initially filed. Dr. Fowlie further argues that, if the Agency were to deny the amendments to his application for review, he will effectively have been confined to apply for review without the benefit of legal counsel.

[13] Dr. Fowlie notes that Air Canada is represented by counsel, and submits that the carrier will not be prejudiced should the amendments be allowed.

[14] Finally, Dr. Fowlie asserts that the overall interests of justice would be served in allowing the amendments as to do so would "[...] permit all of the issues to be fully presented and considered by the Agency in making its decision."

[15] In his reply to Air Canada's submissions, Dr. Fowlie argues that the witness statement he has filed does, in fact, constitute a change in facts and circumstances as this evidence was not available at the time of the Initial Decision, and that it is relevant as it has direct bearing on the finding of credibility made by the Agency in the Initial Decision. Dr. Fowlie further argues that the change in circumstances is the availability of new evidence relevant to the material facts argued. As section 14 of the General Rules does not contain any limiting provisions that amendments must consist only of new facts, he argues that nothing prohibits him from bringing forth new submissions as long as they are necessary to the proceeding.

Air Canada

[16] Air Canada, in opposing Dr. Fowlie's application to amend the Original Application for Review, submits that, to be allowed by the Agency, the proposed amendments must be necessary for the adjudication of the application for review, and the documents to be filed, should the amendments be granted, must not prejudice, hinder or delay the fair conduct of the proceedings.

[17] Air Canada argues that Dr. Fowlie's additional submissions are not necessary to the adjudication of his application for review. Air Canada indicates that they contain no new evidence as to any change in facts or circumstances since the issuance of the Initial Decision. Air Canada adds that the only evidence that contains facts is the statement made by Mary Ann Mulhern, who was Dr. Fowlie's travelling companion, and which was included in Dr. Fowlie's Original Application for Review. According to Air Canada, the facts included in Ms. Mulhern's statement are not new facts or circumstances arising since the decision was issued and her statement does not add any relevant material to the consideration of the application for review under section 32 of the CTA.

[18] Air Canada also submits that Dr. Fowlie is using Ms. Mulhern's statement to re-argue the merits of the initial complaint and to dispute the Agency's findings of fact, as paragraphs 1 to 17 of Dr. Fowlie's additional submissions are simply repetitions of his version of the events of March 22, 2009, which he had already submitted to the Agency and was considered by it in the context of the initial complaint. Therefore, Air Canada submits that the filing of the additional submissions will prejudice the fair conduct of the proceedings by allowing Dr. Fowlie to re‑argue his earlier case and by obliging Air Canada to re-plead the case, as this case has been duly heard, and a decision was rendered.

[19] Air Canada further maintains that a section 32 application cannot be an opportunity to re-hear a case or re-assess the credibility of witnesses and that re-opening the debate on facts previously adjudicated by the Agency would breach section 31 of the CTA, which states that the finding or determination of the Agency on a question of fact within its jurisdiction is binding and conclusive.

[20] Furthermore, Air Canada asserts that the witness statement in question was easily available (or could have been with the exercise of minimal diligence) before the Initial Decision was rendered. Air Canada submits that a decision has already been rendered by the Agency and that to re-argue the case is contrary to the best interests of justice, as Air Canada had a legitimate expectation that this matter was coming to an end. Essentially, the carrier asserts that the amendments sought by Dr. Fowlie are not necessary for the adjudication of the application under section 32 and will prejudice Air Canada's right to a fair hearing in this matter.

Agency ruling on the section 14 request to amend the Original Application for Review

[21] The Agency clarifies at the outset that the following discussion relates only to the section 14 request. Although, as described above, both parties also made submissions pertaining to the merits of the section 32 application in their pleadings with respect to the section 14 request, these are not relevant to the outcome of the section 14 request and will not be considered in that context.

[22] After review of each party's submissions, the Agency finds that the amendments proposed by Dr. Fowlie do not raise new issues, but elucidate the issues raised in his Original Application for Review. The overall interests of justice are served in allowing the amendments, as to do so permits all of the issues to be fully presented and considered by the Agency in making its decision.

[23] Furthermore, Air Canada is not prejudiced in any way by the amendments. The application for review was adjourned prior to opening pleadings pending the resolution of Dr. Fowlie's request for non-publication of his name. Soon after that matter was settled, Dr. Fowlie sought permission to amend his Original Application for Review. Air Canada had the opportunity to respond to that request. Therefore, the Agency accepts the amended submissions and will treat these as the principal application for the purpose of the section 32 review.

[24] The Agency will now examine Dr. Fowlie's application pursuant to section 32 of the CTA for a review of the Initial Decision.

II. APPLICATION PURSUANT TO SECTION 32 OF THE CTA

Legislative context

[25] 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.

[26] 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.

[27] 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.

[28] Indeed, the ability for a tribunal to review a final decision constitutes an exception to the rule of functus officio that the final decision of a court cannot be re-opened. In Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, the Supreme Court of Canada dealt with the issue as to whether a board or a tribunal, such as the Agency, is empowered to review its final decisions in the following terms:

As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. O.J. Ross Engineering Corp., supra.

To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.

Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation.

[29] 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.

[30] 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.

[31] 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.

[32] 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.

[33] 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".

[34] 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.

[35] 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 the losing party 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.

Issue

[36] Do the witness statement and/or legal arguments filed by Dr. Fowlie constitute a change in facts or circumstances since the issuance of the Initial Decision which would warrant a review of the Agency's Initial Decision?

Analysis and findings

[37] In his application for review, Dr. Fowlie submitted a witness statement made by Ms. Mulhern, claiming that its new-found availability constitutes a change in facts or circumstances that is sufficient to warrant a review of the Initial Decision. Dr. Fowlie also submitted new legal arguments based on article 19 of the Montreal Convention in support of a new request for out‑of‑pocket expenses resulting from Air Canada's refusal to transport. The Agency notes that in his Original Application for Review, Dr. Fowlie had presented an argument based on the Canadian Aviation Regulations, SOR/96-433. This argument was not repeated in his amended submissions.

[38] The Agency has carefully reviewed all of the evidence filed by the parties, including the witness statement and legal arguments submitted by Dr. Fowlie in his Original Application for Review, as well as his amended submissions.

[39] As mentioned above, the burden lies with the applicant in a section 32 review to demonstrate that there has been a change in facts or circumstances since the issuance of the original decision. In the Agency's opinion, Dr. Fowlie has not met this burden.

[40] Although Dr. Fowlie makes broad statements as to the fact that Ms Mulhern's witness statement was not available prior to the issuance of the Initial Decision, he has provided the Agency with no explanation as to why this is the case, despite explicit instructions from the Agency in its Decision No. LET-C-A-135-2010 requiring him to provide "[...] explanations as to the admissibility of this new evidence in the context of a section 32 proceeding." Instead, Dr. Fowlie's filed submissions such as, "[s]ubsequent to the [Initial] Decision being rendered, [he] was able to obtain a statement of evidence from a Ms. Mulhern, who had occupied the seat next to his aboard AC871, and had witnessed the events in question" and "[...] the evidence of Ms. Mulhern was not available to [him] at the time of the initial hearing or the issuance of the Decision."

[41] The Agency notes that Air Canada has asserted, and Dr. Fowlie did not deny, that Ms. Mulhern was Dr. Fowlie's travelling companion on the flight in question, a qualification indicating that Dr. Fowlie and Ms. Mulhern knew each other before embarking on the flight. Moreover, in reading Ms. Mulhern's statement, one discovers that Ms. Mulhern not only witnessed the events and discussed them with Dr. Fowlie, but intervened with Air Canada's staff on behalf of Dr. Fowlie. He therefore knew, at the time of the original hearing, that someone other than Air Canada employees had witnessed and had knowledge of the events in question. He obviously also knew that if he wanted evidence corroborating his version of events, he could go to her, which he did promptly after receiving the Initial Decision.

[42] The Agency also takes note of the fact that Ms. Mulhern provided Dr. Fowlie with the signed statement within ten days of the issuance of the Initial Decision. The Agency finds it improbable that Ms. Mulhern's witness statement was not discoverable or available to Dr. Fowlie with exercise of due diligence on his part before the Initial Decision was issued. In the Agency's opinion, this witness statement does not constitute a change in facts or circumstances since the issuance of the Initial Decision justifying a review of that Decision.

[43] With respect to the legal arguments presented by Dr. Fowlie, the Agency finds that he had the opportunity, at the time of his initial complaint, to plead any legal argument he considered relevant. An application for review is not the appropriate vehicle to re-argue a case or appeal questions of law; the appropriate avenue of appeal is the Federal Court of Appeal.

[44] Finally, obtaining counsel or change in counsel for the purposes of filing a section 32 application cannot, in itself, qualify as a change in circumstances.

[45] In light of the foregoing, the Agency finds that neither the witness statement nor the legal arguments provided by Dr. Fowlie constitute a change in the facts or circumstances pertaining to the Initial Decision as contemplated by section 32 of the CTA, and therefore do not warrant the Agency proceeding with a review of the Initial Decision.

CONCLUSION

[46] Based on the above findings, the Agency dismisses Dr. Fowlie's application for a review of Decision No. 57-C-A-2010.

Members

• Raymon J. Kaduck
• J. Mark MacKeigan