Transition book for the Chair and CEO 2021 - Agency overview

February 2021

Mandates

• The longest standing independent quasi-judicial tribunal and regulator of the Canadian federal government (since 1904)
• Three core mandates:
  • help ensure that the national transportation system runs efficiently and smoothly in the interests of all Canadians: those who work and invest in it; the producers, shippers, travellers and businesses who rely on it; and the communities where it operates
  • protect the human right of persons with disabilities to an accessible transportation network
  • provide consumer protection for air passengers

Tools

• Three tools to help advance these mandates:
  • Rule-making: We develop and apply ground rules that establish the rights and responsibilities of transportation service providers and users and that level the playing field among competitors. These rules can take the form of binding regulations or less formal guidelines, codes of practice or interpretation notes.
  • Dispute resolution: We resolve disputes that arise between transportation service providers on the one hand, and their clients and neighbours on the other, using a range of tools from facilitation and mediation to arbitration and adjudication.
  • Information provision: We provide information on the transportation system, the rights and responsibilities of transportation service providers and users, and the Agency's legislation and services.

Legislative Framework

• The CTA in its current form was established through the Canada Transportation Act (Act), which is the main source of its powers and responsibilities
• CTA has shared responsibility under 11 other statutes
• CTA has sole responsibility for and administers 11 regulations, and shares responsibility for 4 others
• 2 sets of rules: one for dispute adjudications, the other for rail level of service arbitration
• Details can be found on the Canadian Transportation Agency website where an up-to-date list is always available

Agency Members

• CTA exercises its powers through its Members, who are appointed by the Governor-in-Council (GIC):
  • The GIC may appoint up to five full-time Members, including the Chair and Chief Executive Officer (CEO) and the Vice-Chair.
  • The Minister of Transport can also appoint up to three temporary Members from a roster established by GIC.
• All CTA Members, as independent decision-makers, are accountable for making quasi-judicial decisions and determinations on matters before the CTA and are supported in their decision-making by 375 employees.

The Chair

• GIC designates one member as Chair and CEO of the CTA
• Is responsible for supervision over and direction of the work of the members and staff, including apportionment of work among the members and the assignment of members to deal with any matter before the CTA
• Is accountable for all of the CTA's activities, including corporate matters.
• The Vice-Chair replaces the Chair and CEO during his absence

Chair and Chief Executive Officer's (CEO's) specific functions

As Chair:

• Assumes the strategic directions of the Agency;
• Is the public face of the Agency;
• Manages relationships with Minister, Deputies, and senior officials of key stakeholders;
• Assigns cases to, sets standards of conduct for, and oversees (without unduly interfering) the rigor and timeliness of the work of Agency Members.

As CEO:

• Is the most senior manager in the organization,
• Ensures the efficient and effective use of resources allocated by Parliament, serving as the accounting officer under the FAA (Financial Administration Act)
• Is the deputy head accountable for the Agency's obligations under various statutes and central agencies' policies (Access to Information Act, Public Service Employment Act, Official Languages Act, etc.)

Organizational Structure

• Five branches:
  • Dispute Resolution
  • Determinations and Compliance
  • Analysis and Outreach
  • Internal Services
  • Legal and Secretariat Services
• The heads of each branch report directly to the Chair and CEO and are part of the Executive Committee, along with the Chair, Vice-Chair and Chief of Staff

Members' Committee

• Discuss, provide input regarding and approve Agency policies, procedures and other documents (e.g., industry guidance, interpretation notes) relevant to Member determinations, decisions, orders and case adjudications
• Explore legal issues, developments, and training pertinent to Members in support of their decision-making responsibilities
• Address issues and share information relating to the decision-making process and workload
• Meetings have been scheduled on an as-needed basis, typically 4-6 times per year. However, members meetings have been scheduled on a weekly basis, since the beginning of the pandemic.

Executive Committee (EC)

The Executive Committee (EC) is the Agency’s senior-level discussion and decision-making forum for all management-related matters. It is comprised of the following members:

• Chair and CEO (EC Chair)
• Vice-Chair
• Chief Corporate Officer & Chief Financial Officer
• Chief Strategy Officer
• Chief Compliance Officer
• Chief Dispute Resolution Officer
• Senior General Counsel & Secretary
• Chief of Staff

EC holds meetings of 1–3 hours in length each week, and extended meetings each quarter.

Occupational Health and Safety Committees (OHSC & OSHPC)

• CTA has two health and safety committees, as required by Law:
  • Occupational Health and Safety Committee (OHSC)
  • Occupational Health and Safety Policy Committee (OHSPC)
• The OHS Committees are advisory and consultative forums through which management and employee representatives meet to exchange information and discuss OHS related matters.
• Their role is to promote safe and healthy working conditions for all persons working at all sites controlled by the employer and support the organization in the development of related policies and directives.
• Both committees are comprised of a Champion, Co-Chair Management & Co-Chair Employee and Members.

Agency, Evaluation and Performance Measurement Committee (AEPM)

The AEPM Committee is an advisory body supporting the Chair and CEO in his role as accounting officer and deputy head.  Consistent with Treasury Board policy objectives on internal audit, evaluation and performance measurement, the Committee will discharge a review and challenge function to help ensure:

• efficient and effective use of Agency resources;
• oversight of financial and other internal controls;
• appropriate participation in audit activities including the Office of the Comptroller General's Risk-Based Internal Audit Plan for Small Departments and Agencies;
• regular consideration of program evaluation needs;
• monitoring and implementation of management action plans developed in response to audits and evaluations; and
• meaningful and transparent measurement of and reporting on performance and results.

Labour-Management Consultation Committee (LMCC)

The LMCC Committee is a forum for consultation, exchange of information and discussion of workplace issues and potential responses between management and bargaining agents.

Guiding principles : The Committee's deliberations are guided by a shared commitment to professionalism and mutual respect, openness and transparency, clear and meaningful two-way communication, and effective collaboration.

Composition

• Bargaining Agent Representation
• Management Representation:
  • Chair and CEO and Vice-Chair
  • Branch Heads
  • Head of HR
  • Chief of Staff to the Chair and CEO
• Other Participants (subject matter experts from the CTA)

Quorum – disputes and regulatory determinations

The Chair is responsible for the assignment of panels to decide disputes or make regulatory determinations:

• 1 member is a quorum for all proceedings initiated by application
• 2 member quorum for all other matters
• 3 member Panels are typically used for complex cases or cases that may have policy implications beyond the case.

Canada’s National Transportation Policy

• decision-making to be guided by this policy
• set by Parliament in s.5 of the Act:

  “… a competitive, economic and efficient transportation system…[that] makes the best use of all modes of transportation at the lowest total cost”

• policy objectives achieved when:
  • competition and market forces are the prime agents in providing viable and effective transportation services;
  • regulation and strategic public interventions are used when necessary;
  • government and the private sector work together for an integrated transportation system.
  • the transportation system is accessible without undue obstacle to the mobility of all persons

Canadian Transportation Agency (CTA) Decisions and Determinations

• CTA operates similar to a court when adjudicating disputes
• Oral hearings are not required and most cases proceed on written pleadings
• CTA decisions and orders are final and binding
• CTA decisions are enforceable – may be made orders of the Federal Court and enforced as a court order through contempt of court proceedings
• Designated Enforcement Officers can impose administrative monetary penalties (AMPs) for non-compliance with Agency decisions in some cases

Challenges to Canadian Transportation Agency (CTA) Decisions

• CTA may review, rescind or vary its own decisions or orders (new facts and circumstances)
• CTA decisions may be varied or rescinded by the Governor in Council, on petition or on the GiC's own motion
• CTA decisions may be appealed to the Federal Court of Appeal (FCA) on a question of law or jurisdiction only, with leave of the Court; FCA decisions may be appealed to the Supreme Court of Canada, if granted leave by that court
• Other CTA actions may be subject to judicial review by the Federal Court of Appeal

Internal Communication Practices

On the Hub

• Work-related news, Corporate information library, employeee tools
• Employee engagement and interactive blog posts
• Agency Champions, Committees, working groups, networks
• Events calendar for meetings, training and commemorative days

By email

• Bi-weekly e-mail and Chair blogpost
• Bi- weekly e-mail from the Chief Corporate Officer on internal services
• Daily Morning report published in the Hub's "What is new"
• Daily media monitoring morning and afternoon report

Internal virtual events

• All-staff Town Hall
• Munch & Learn
• Agency Champion events
• Social events

Financial Management Practices

• The CTA's internal financial management practices consist of ongoing monitoring, four top-down budget reviews annually and Executive Committee (EC) oversight on results.
  • Planning and budget allocations for the following fiscal year are completed in February and presented to EC for approval in March;
  • Bottom-up budget reviews are normally completed at P3–July, P5-September, P8–December and P10–February;
  • Year-end results (P12) are presented to EC in May.

Main Corporate Reports

• Annual Report
  • CTA is required to report to Parliament every year on its activities through its annual report.
  • The report must be submitted through the Minister of Transport to the Governor in Council. In addition, the report is tabled in the House of Commons by the Minister of Transport.
  • Must include a yearly assessment of any difficulties observed in administering the Act, and typically recommends legislative amendments to resolve those difficulties.

• The Departmental Plan is the Agency's spending plan. It describes the department’s priorities, planned results and associated resource requirements for the following 3‑year period.
  • Focuses on the benefits for Canadians, explains the critical aspects of planning and performance;
  • Associates performance with plans, priorities and expected results; and explains changes, considerations of past performance, and lessons learned;
  • Links resources to results;
  • Is tabled in Parliament by the Minister of Transport in February.

• The Departmental Results Report is the department’s account of its actual results.
  • Informs parliamentarians and Canadians of the results achieved by the Agency;
  • Reports on actual results against the Departmental Plan;
  • The Departmental Results Framework contains the programs and indicators used to report on Results;
  • Is tabled in Parliament by the Minister of Transport in November.

• The Quarterly Financial Report (QFR) make in-year spending available to Parliamentarians and Canadians.
  • Supplements existing year-end reporting (Public Accounts);
  • Consists of financial tables comparing planned and actual expenditures for both the quarter and year-to-date as well as comparative information for the preceding fiscal year;
  • Contains a narrative section which provides a concise discussion on the significant changes affecting both the quarter and year to date financial results;
  • Is published on our website for each of the first three quarters of the fiscal year (June 30, September 30 and December 31).

• The Public Accounts is the financial report of the Government of Canada prepared annually by the Receiver General.
  • Contains the summarized financial transactions in the accounts of Canada, maintained by the Receiver General;
  • The Agency is responsible for reconciling its accounts to the control accounts of the Receiver General, and for maintaining detailed records of the transactions;
  • Is submitted in June and finalized in September.

• The Management Accountability Framework (MAF) assessment is a key tool of oversight that is used by the Treasury Board of Canada Secretariat (TBS) to achieve results.
  • Ensures that departments and agencies are well managed, accountable and that resources are allocated to achieve results;
  • Ensures that policy requirements and expected results are met;
  • Supports the management accountability of Deputy Ministers and Heads of Agencies;
  • Tracks progress on government-wide management priorities;
  • Is submitted in December and finalized in February.

Railway Costing Regulations

The Railway Costing Regulations were registered on May 1, 1980.

The Railway Costing Regulations set out the rules for determining railway variable costs, which stipulate that variable costs shall include the increases and decreases in rail operating expenses resulting from changes in the volume of traffic.

The Railway Costing Regulations apply in respect of cost submissions filed to the Canadian Transportation Agency by all railway companies under its jurisdiction.

Railway Traffic Liability Regulations

These regulations were registered on August 14, 1991.

The Railway Traffic Liability Regulations identify the extent to which a railway company’s liability may be limited or restricted in respect of any traffic and prescribe the terms and conditions of the limitation or restriction, including:

• Stoppage in transit;
• Liability of originating carrier;
• Routing by carrier;
• Valuation;
• Owner's or shipper's risk;
• Undelivered goods;
• Carrier not represented by agent;
• Goods of extraordinary value; and,
• Dangerous goods.

Railway Traffic and Passenger Tariffs Regulations

These regulations were registered on July 3, 1996.

The Railway Traffic and Passenger Tariffs Regulations set out the information to be included in every traffic or passenger tariff that is issued and published by a railway company under Part III of the Canada Transportation Act.

This includes, but is not limited to, information such as:

• a statement of the rates, in dollars and cents, for each designated unit of weight or volume, for each type of equipment or service rendered or for each passenger;
• a brief description of any category of traffic or passenger that is being transported; and,
• the point of origin and point of destination of any traffic or passenger.

Regulations on Operational Terms for Rail Level Services Arbitration

This regulation was first registered on August 1, 2014.

The regulation was repealed on August 1, 2016, but was revived on May 23, 2018, as a result of the Transportation Modernization Act. Upon being revived, the regulations came into force.

The Canada Transportation Act provides for arbitration when shippers and railway companies are not able to reach a negotiated level of services agreement. The matters eligible for arbitration are described, in part, by the use of the expression "operational terms". The Regulations on Operational Terms for Rail Level of Services Arbitration serve as a framework for what constitutes an "operational term" to give support to conducting arbitrations.

The Regulations on Operational Terms for Rail Level of Services Arbitration define the expression "operational term" for the purposes of paragraph 169.31(1)(c) of the Canada Transportation Act.

Air Passenger Protection Regulations (APPR)

The APPR was first registered on May 22, 2019.

The APPR is currently being amended to include a requirement for air carriers to provide passengers with refunds when there is a flight cancellation, or a lengthy delay, and it is not possible to complete the passengers' itinerary within a reasonable time. Final publication of the amendments are anticipated to be finalized in Summer 2021.

The regulations provide for clearer and more consistent air passenger rights by imposing certain minimum airline requirements in air travel – including standards of treatment and, in some situations, compensation for passengers. The regulations set out airlines' obligations to passengers in the following areas:

• Communication;
• Delayed or cancelled flights;
• Denied boarding;
• Tarmac delays;
• The seating of children under the age of 14;
• Lost or damaged baggage; and
• The transportation of musical instruments.

The regulations came into effect in two stages. On July 15, 2019, airlines were required to meet new obligations concerning communication, denied boarding, tarmac delay, baggage and the transportation of musical instruments. The remaining obligations on flight disruptions and seating of children came into effect on December 15, 2019.

Air Transportation Regulations (ATR)

The ATR was first registered on December 31, 1987.

The ATR were amended on February 13, 2017, May 31, 2019 and June 25, 2019.

The Air Transportation Regulations set out the criteria that air carriers must meet regarding the carriage of passengers and/or cargo by air, with respect to: the issuance, amendment or renewal of domestic and international licences; the operation of transborder and international charters; the information that licence holders shall include in their tariffs for public knowledge and record purposes; advertising prices; the form and content of service schedules that are required to be filed with the Canadian Transportation Agency; and terms and conditions of carriage of persons with a disability.

The 2017 amendments were minor and primarily aimed at correcting discrepancies between the French and English versions of the ATR, adding clarity to regulatory provisions and correcting errors and improving text.

The ATR were developed over thirty years ago, and while they have been adjusted over the years, they needed updating in order to reflect changes in the domestic and international aviation industry. Specifically, amendments to the ATR in May 2019 were required to:

• Modernize air insurance provisions;
• charter provisions to reflect market realities;
• Clarify code-sharing and wet-leasing provisions;
• Reduce burden on licensed operators; and
• Address housekeeping items.

The majority of the amendments came into force by July 1, 2019, while the remaining requirements will be implemented by July 1, 2021 (e.g. insurance requirements).

The ATR further underwent a minor consequential amendment on June 25, 2019 stemming from the Accessible Transportation of Persons with Disabilities Regulations.

Railway Interswitching Regulations

The Railway Interswitching Regulations were registered on December 17, 1987.

However, the regulation was last amended (and came into force) on June 25, 2019 to reflect changes made by the Transportation Modernization Act> (TMA), including requiring the Agency to set interswitching rates annually by decision, rather than through a regulatory process. Specifically, the Agency must set the rates by December 1 of every year.

The Railway Interswitching Regulations set the rates to be charged for interswitching services provided by the terminal carrier, thereby establishing a predictable and fair pricing regime that is applied equally to all terminal carriers providing interswitching services.

The Railway Interswitching Regulations prescribe terms and conditions for the interswitching of traffic, as well as determine the rate per car to be charged for performing this operation and establish distance zones for that purpose.

Railway Third Party Liability Insurance Coverage Regulations

These regulations were registered on July 3, 1996.

However, the regulations were last amended (and came into force) on June 25, 2019.

In keeping with the Canada Transportation Act, the Agency must issue a certificate of fitness if it is satisfied that there will be adequate liability insurance coverage for the proposed construction or operation of a railway. The third party liability insurance requirements are specified in the Regulations. This insurance includes coverage for:

• third party bodily injury or death, including injury or death to passengers;
• third party property damage, excluding damage to cargo; and
• named perils pollution.

The Railway Third Party Liability Insurance Coverage Regulations set out the requirements that must be met in order for a railway company to be in possession of adequate third party liability insurance coverage.

The amendments made in 2019 align rail-related regulations with a series of changes to the Safe and Accountable Rail Act (SARA). These amendments to the Railway Third Party Liability Insurance Coverage Regulations are necessary to ensure freight rail operators’ compliance with the minimum insurance requirements, which were introduced under the SARA following the Lac-Mégantic tragedy of 2013.

Personnel Training for the Assistance of Persons with Disabilities Regulations

This regulation was first registered on January 13, 1994.

However, upon the coming into force of the ATPDRs, this regulation was last amended (and came into force) on June 25, 2019 to reflect that any carriers or terminal operators that are subject to Part 1 of the ATPDR, are not subject to the Personnel Training for the Assistance of Persons with Disabilities Regulations.

The purpose of the Personnel Training for the Assistance of Persons with Disabilities Regulations is to eliminate undue obstacles to the mobility of persons with disabilities in the transportation network governed by the Canada Transportation Act.

The regulations set out the form and required information to be contained in the personnel training program.

Accessible Transportation for Persons with Disabilities Regulations (ATPDR)

The ATPDR was registered in June 25, 2019.

The CTA has consolidated its various accessibility instruments – six voluntary codes and two regulations – to create a single, robust, legally binding Accessible Transportation for Persons with Disabilities Regulations (ATPDR).

The ATPDR cover all modes of transport under our jurisdiction – air, and interprovincial and international passenger rail, bus, and ferry – as well as security and border screening. The accessibility requirements in the ATPDR will be enforceable by administrative monetary penalties.

Transportation service providers are required to start complying with most of the new provisions as of June 25, 2020. More complex technical requirements will come into force one or two years later to ensure that they can be smoothly implemented.

However, it was last amended (and came into force) on February 8, 2021 to correct errors and inconsistencies so that the ATPDR are as clear as possible.

The CTA is currently starting the development of a consultation paper to amend certain sections of the ATPDR. Consultation is expected to begin in summer/fall 2021, with the draft regulation proceeding to Canada Gazette I in winter 2022.

Canadian Transportation Agency Designated Provisions Regulations (DPRs)

The DPRs were first registered on June 11, 1999.

However, they were amended between May 2019 to June 2019, to include administrative monetary penalties for non-compliance with the new Air Passenger Protection Regulations, as well as a number rail-related requirements and CTA orders. These provisions came into force between June 2019 to July 2019.

In addition, they were also amended (and came into force) on February 8, 2021 to ensure that the DPR were consistent with the Accessible Canada Act.

The Canadian Transportation Agency Designated Provisions Regulations set out provisions of the Canada Transportation Act, the Air Transportation Regulations and the Personnel Training for the Assistance of Persons with Disabilities Regulations that are to be designated provisions. They permit the Canadian Transportation Agency to impose monetary penalties, not exceeding $5,000 per violation for an individual and $25,000 for a corporation, for the contravention of any designated provision.

Legal Services

April 2021

Creation of the Agency

• The Agency is a creature of statute.
• If the Agency wants to pursue any action or carry out any thing, that action must be permitted by a statute, either directly or by necessary implication.

Enabling legislation

Canada Transportation Act (CTA)

• Creates the Agency; allows for and specifies the appointment of Members; and allows the hiring of Agency staff.
• Grants the Agency powers over specific rail, air and accessibility matters.
• Grants the Agency general powers. As a quasi-judicial tribunal and regulator, these powers apply not only to cases brought to the Agency under the CTA, but also under other acts that give the Agency decision-making powers over federal transportation matters e.g. Pilotage Act, Coasting Trade Act, Civil Air Navigation Services Commercialization Act, etc.

Other transportation-related statutes

The Agency has specific powers under other statutes that regulate transportation, including

• Accessible Canada Act
• Civil Air Navigation Services Commercialization Act
• Coasting Trade Act
• Pilotage Act
• Railway Safety Act

Other instruments

Other instruments:

• Regulations : Regulations are delegated legislation. They are binding and enforceable. The Agency makes its own regulations, which are subject to the approval of the Governor in Council.
• Rules : The Agency has the power to make rules respecting its proceedings. The Dispute Adjudication Rules establish the procedure followed for dealing with contested matters commenced by an application or a complaint.
• Guidelines : Inform the parties of how the Agency typically exercises some of the powers it has under statute or regulations. Guidelines are usually non-binding.

Other statutes governing federal government bodies

The Agency, as a federal government body, has powers and duties under statutes, and related regulations, policies and guidelines, such as:

• Access to Information Act
• Privacy Act
• Official Languages Act
• Public Servant Disclosure Protection Act
• Public Service Employment Act
• Financial Administration Act

Recent changes to Agency's legislative and regulatory framework

Accessible Canada Act

The Agency, as a federal government body, has powers and duties under statutes, and related regulations, policies and guidelines, such as:

• The Act to Ensure a Barrier-Free Canada (Accessible Canada Act), which came into force in 2019, provided the Agency with new tools to help with the proactive identification, removal, and prevention of barriers to accessibility for persons with disabilities within the national transportation system.
• The new powers included:
  • own-motion powers to initiate investigations (with approval from the Minister of Transport),
  • compensation award powers for lost wages, pain and suffering, and willful or reckless practice,
  • ordering corrective measures if there is an undue barrier to mobility, even if a transportation service provider has complied with a regulation,
  • new compliance and monitoring tools, including the ability to enter into compliance agreements, and
  • power to levy administrative monetary penalties to a maximum of $250 000 for non-compliance with certain accessibility related regulations.

Accessible Canada Act cont'd

• Section 63 also requires the Agency to make regulations requiring regulated entities to prepare and publish accessibility plans and progress reports, and to establish feedback processes.
• "No wrong door": Section 122 requires the Agency, the Accessibility Commissioner, Canadian Radio-television and Telecommunications Commission, Canadian Human Rights Commission and the Federal Public Sector Labour Relations and Employment Board to collaborate to ensure the efficient and expeditious referral of accessibility-related complaints.

Common law duties – Natural justice

• Natural justice applies when dealing with dispute and regulatory determinations cases
• Two requirements: impartiality and audi alteram partem

Common law duties – Impartiality

"A state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions. In contrast, bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues."

R. v. S. (R.D.), [1997] 3 SCR 484, also referred to in R. v. Teskey, [2007] 2 SCR 267)

Common law duties – No reasonable apprehension of bias

"What would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."

Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 SCR 369

Common law duties – Right to be heard (Audi Alteram Partem)

"The audi alteram partem rule, which is a component of the principles of natural justice and of procedural fairness, requires that a person who is a party to proceedings before a tribunal be informed of the proceedings and provided with an opportunity to be heard by the tribunal."

Telecommunications Workers Union v. Canada (Radio-television and Telecommunications Commission), [1995] 2 SCR 781

Common law duties – Procedural fairness

"…a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual."

Cardinal v. Director of Kent Institution, [1985] 2 SCR 643

Common law duties – Procedural fairness cont'd

The content of the duty of procedural fairness varies based on factors such as:

• the nature of the decision being made and the process followed in making it;
• the nature of the statutory scheme being administered;
• the importance of the decision to the affected individual;
• the legitimate expectations of the person challenging the decision; and
• respect for the choice of procedures made by the administrative agency itself.

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817

Common law duties – Providing reasons

The duty of procedural fairness may require that the decision-maker provide written reasons for their decisions, including where the decision has important significance for the individual or when there is a statutory right of appeal.

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817

Common law duties – Previous decisions

The Agency is not bound by its previous decisions, but the principle of arbitral consensus applies - there is an expectation that the Agency will only depart from previous interpretations if there is a basis for doing so, and that basis is articulated in the decision.

Canadian Pacific Railway Company v. Canada (Transport, Infrastructure and Communities), 2015 FCA 1

Administrative decision-makers must be concerned with the general consistency of their decisions. Like cases should generally be treated alike.

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65

Appeals, variation and rescission of Agency decisions

Agency decisions and orders

• are appealable to the Federal Court of Appeal (FCA) on a question of law or jurisdiction, on leave of the FCA. The FCA now reviews Agency decisions on a correctness standard (section 41 of the Canada Transportation Act (CTA));
• may be varied or rescinded by the Governor in Council, on petition of a party or an interested person or of the Governor in Council’s own motion (section 40 of the CTA);
• may be varied or rescinded by the Agency if there has been a change in the facts or circumstances that warrants it (section 32 of the CTA).

Master of own procedure

The Agency has the power, both by common law and by the Canada Transportation Act (CTA), to choose its own procedures regarding all matters within its jurisdiction. This is reflected in:

• S. 25 of the CTA – Powers of a superior court
• S. 17 of the CTA – Powers to make rules of procedure
• The Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings) (Rules) which sets out the process for dealing with contested matters initiated by applications
• SS. 5 and 6 of the Rules – Power to dispense with or vary the Rules
• S. 38 of the CTA – Power to appoint an inquiry officer to make any inquiry that the Agency is authorized to conduct and report to the Agency

Own motion powers

The Agency has authority to initiate, on its own motion (without a complaint or an application), inquiries and investigations into certain matters.

• Rail level of service [116(1.11) of the CTA]
• Accessibility matters [172.3 of the CTA]
• Reasonableness of international air tariff provisions [111 of the Air Transportation Regulations (ATR)]
• General own-motion power to inquire whether a person should be required to do or refrain from doing anything required or prohibited under any statute administered by the Agency [26 of the CTA]

Regulation making powers

The Agency, has the power to, with the approval of the Governor in Council, make its own regulations with respect to certain specified matters, including:

• Air transportation [86 of the CTA]
• Advertising for air services [86.1(1) of the CTA]
• Air passenger protection [86.11(1) of the CTA]
• Liability insurance coverage requirements for railways [92(3) of the CTA]
• Railway interswitching [128(1) of the CTA]
• Accessibility for persons with disabilities [170(1) of the CTA]
• Accessibility plans, feedback processes, and progress reports [63(1) of the Accessible Canada Act (ACA)]

Powers to issue regulatory authorizations

The Agency issues regulatory authorizations which are necessary for carriers to launch services or carry out certain works. These include:

• Domestic and international air licences [61, 69 and 73 of the CTA],
• International air charter permits [75.1 of the CTA and Part III of the Air Transportation Regulations]
• Railway certificates of fitness [92 of the CTA]
• Approval for the construction of a railway line [98 of the CTA]
• Determination of availability and suitability of a Canadian vessel to perform costing trade activities as part of the coasting trade licensing process [8(1) of the Coasting Trade Act]

Dispute resolution powers

The Agency has the authority to adjudicate certain transportation-related complaints and applications, such as:

• Air travel complaints – failure to apply tariffs [67.1 of the CTA and section 113.1 of the Air Transportation Regulations]
• Reasonableness of air carrier tariff [67.2 of the CTA and 111 of the Air Transportation Regulations]
• Railway noise and vibration [95.3 of the CTA]
• Construction and maintenance of road, utility and private rail crossings [101-103 of the CTA]

Dispute resolution powers (cont'd)

• Rail level of service obligations [116 of the CTA]
• Reasonableness of railway charges [120.1 of the CTA]
• Railway interswitching [127 of the CTA]
• Long-haul interswitching [134 of the CTA]
• Accessibility for persons with disabilities in the federal transportation system [172 of the CTA]
• Loss arising out of contravention of accessibility related regulations [172.1 of the CTA]
• Pilotage charge [34(1) of the Pilotage Act]
• Air navigation services charge [42 of the Civil Air Navigation Services Commercialization Act]
• Security screening services charge [31 of the Security Screening Services Commercialization Act]

Agency decisions and orders

The Agency has broad powers in the crafting of decisions and orders.

• Power to grant an application in whole or in part and to make any further or other relief the Agency considers appropriate [27(1) of the CTA].
• Power to make conditional orders that may come into force
  • at a future time [28(1)(a) of the CTA]
  • on the happening of any contingency, event or condition [28(1)(b) of the CTA]
  • When conditions imposed by the Agency have been met, to the satisfaction of the Agency or a person named by it [28(1)(c) of the CTA]
• Power to make interim orders [28(2) of the CTA]

Powers with respect to remedies

The Agency may only order remedies authorized by statute, which may be very broad, for instance:

Rail level of service complaints

• Power to order that specific works be constructed or carried out, or that property be acquired [116(4)(a)(i) and (ii) of the CTA]
• Power to order compensation for expenses incurred as a result of the company’s failure to fulfil its service obligations [116(4)(c.1) of the CTA]

Air travel complaints

• Powers to order compensation for expenses [67.1 of the CTA and 113.1 of the Air Transportation Regulations]

Accessibility complaints

• Power to order compensation for loss of wages, pain and suffering and compensation in situations of willful or reckless practice [172(2) of the CTA]

Exemption powers

The Agency has powers to make orders which exempt certain persons or groups from certain legal requirements:

Air transportation

• Power to exempt by order a carrier from a requirement of Part II of the CTA (Air Transportation) or a regulation or an order made under that part [80 of the CTA]

Accessibility

• Power to exempt by order, with the approval of the Governor in Council, a transportation service provider from a requirement of an Agency accessibility regulation [170(3) of he CTA]
• Power to exempt by order, after consultation with the Minister of Transport, a transportation service provider from a requirement of an Agency accessibility regulation for no more than 3 years, if the person has taken or will take measures at least equivalent to the regulations [170(4) of the CTA]
• Power to exempt by order, with the approval of the Minister of Transport, a transportation service provider from a requirement of regulations made under the Accessible Canada Act for no more than 3 years [64(1) of the Accessible Canada Act]

Review, variation and appeal of Agency decisions

The CTA provides for the following mechanisms to challenge decisions of the Agency:

• Decisions and orders may be reviewed, varied or rescinded by the Agency if there has been a change in the facts or circumstances that warrants it [32 of the CTA]
• Decision, order, rule or regulation may be varied or rescinded by the Governor in Council, either on its own motion or upon petition [40 of the CTA]
• Decision, order, rule or regulation, may be appealed, with leave, to the Federal Court of Appeal on a question of law or a question of jurisdiction [41 of the CTA]

Enforcement - General powers

The Agency has various compliance monitoring and enforcement tools it can use depending on the specific requirement being contravened.

• Powers of a superior court, including the enforcement of its orders or regulations and the entry on and inspection of property [25 of the CTA]
• Injunctive powers [26 of the CTA]
• Power to enforce a decision or order by its own action [33(4) of the CTA]
• Power to file a decision or order with the Federal Court, making the order enforceable as an order of that court [33(1) of the CTA]

Enforcement – Suspension or cancellation of authorizations

The Agency may ensure compliance with legal requirements by suspending or cancelling regulatory authorizations it has issued.

• Suspension or cancellation of domestic and international air licences [63, 72 and 75 of the CTA]
• Suspension or cancellation of railway certificate of fitness for non-compliance with liability insurance coverage requirements [94.2 of the CTA]

Enforcement – Administrative Monetary Penalties

The Agency administers an Administrative Monetary Penalty (AMP) regime, under which Agency designated enforcement officers (DEOs) may issue notices of violation (NoV) for the contravention of certain legal requirements [177(1) to 181.2 of the CTA].

Penalty amounts can be up to a maximum of

• $5 000 for an individual
• $25 000 for a corporation
• $100 000 for the contravention of certain rail liability coverage requirements
• $250 000 for the contravention of certain requirements of the Accessible Canada Act or the Agency's accessibility regulations

Enforcement – Review of NOVs

• NoVs containing a penalty may be challenged by way of a request for review to the Transportation Appeal Tribunal of Canada. [180.1(1) of the CTA]
• NoVs containing a warning (accessibility related contraventions) may be reviewed by the Agency [180.1(2) of the CTA]
• Persons served with an NoV containing a penalty (accessibility related contraventions) may request to enter into a compliance agreement with the Agency [180.1(3)(c) of the CTA]

Sample of Agency and Court Decisions on Key Issues

Air Transportation

MacGillivray v. Cubana de Aviación S.A. – Compensation for Expenses Incurred

In Decision No. 308-C-A-2010, the Agency found that a passenger was entitled to compensation for expenses incurred as a result of the carrier's failure to apply their tariff. The Agency outlined its approach to the evidence required to substantiate a claim, explaining that it expects parties endeavouring to prove a fact would do so by presenting the best evidence available in light of the nature and circumstances of the case.

Yehia v. Air Canada – Loss of Income, Pain and Suffering

In Decision No. 185-C-A-2003, the Agency found that it does not have the authority to award compensation for loss of income, pain and suffering, or stress. This application dealt with international carriage, yet the Agency has found the same with respect to domestic carriage (see, for example, Decision No. 361-C-A-2007).

Neil v. WestJet – Prepaid Expenses

In Decision No. 91-C-A-2019, refused to order a carrier to pay compensation for a missed night of prepaid accommodation following a flight delay. The Agency determined that such expense is not incurred as a result of a carrier's failure to apply their tariff and that, accordingly, it cannot be compensated pursuant to paragraph 113.1(b) of the Air Transportation Regulations, SOR/88-58.

Sunwing Inquiry – Multiple Flight Disruptions

The Agency launched an inquiry into flight disruptions resulting from a weather event affecting 96 flights and 16,255 passengers. The Agency found that in respect of at least some of the affected flights Sunwing did not properly apply the terms and conditions set out in its Scheduled International Tariff with respect to meal vouchers, hotel vouchers, expenses, rerouting, refunds, flight status communications, baggage status communications, and tarmac delays (Determination No. A-2019-58).

The Agency further found that tariff provisions relating to lost, delayed, and damaged baggage, and those related to non-scheduled international flights were unreasonable as they were inconsistent with the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention).

Anderson v. Air Canada – Unreasonable or Unduly Discriminatory Tariffs

In Decision No. 666-C-A-2001, the Agency established the principle that, when deciding whether a tariff is "reasonable" within the meaning of subsection 67.2(1) of the Canada Transportation Act, S.C. 1996, c. 10 (CTA) "a balance must be struck between the rights of the passengers to be subject to reasonable terms and conditions of carriage, and the particular air carrier's statutory, commercial and operational obligations".

The Agency further established that, in order for a tariff to be "unduly discriminatory" within the meaning of subsection 67.2(1) of the CTA:

• A distinction must be made on a prohibited ground which has the effect of imposing a burden, obligation, or disadvantage, or withholding or limiting access to opportunities benefits, and advantages; and,
• The determination of whether this discrimination is "undue" requires a balancing of the rights of passengers and the air carrier's obligations.

Inquiry into WestJet's International Tariff – Incorporation of the APPR in Tariffs

In Determination No. A-2019-241, the Agency found that the incorporation by reference of the Air Passenger Protection Regulations, SOR/2019-150 (APPR), was not sufficient to meet the clarity requirement of the Air Transportation Regulations because some of the language that remained in the carrier's tariff was inconsistent with the minimum obligations prescribed in the Air Passenger Protection Regulations.

Interpretive Decision – Meaning of "Air Service"

In Decision No. 390-A-2013, the Agency determined that in order for a service to be an "air service" within the meaning of the CTA, it must be: offered and made available to the public; provided by means of an aircraft; provided pursuant to a contract or arrangement for the transportation of passengers or goods; and, offered for consideration.

The Agency distinguished between transporting members of the public and/or goods, and offering and making an air service available to the public, and determined that the following types of operations are not available to the public and therefore do not require a licence from the Agency: private carriage, personal use of aircraft, and use of corporate aircraft.

NewLeaf Travel Company – Resellers

The Agency determined in Decision No. 100-A-2016 that resellers do not operate air services and are not required to hold an air licence, as long as they do not hold themselves out to the public as an air carrier operating an air service. Considerations that are relevant in determining whether the public may be led to believe that the reseller is the carrier operating the air service include: providing images of aircraft with their livery; lack of clear disclosure on Web site, marketing material, and tickets on the identity of the operating carrier; using terms such as "our crew" or "we fly" on these materials. This can be contrasted to a reseller that clearly identifies the air carrier that will operate the air service or that the reseller's role is limited.

WestJet v. NAV Canada – Charging Principles

In Decision No. 4-A-2021, the Agency dismissed WestJet's appeal. In coming to this conclusion, the Agency examined the meaning and purpose of the charging principles and the requirement for reasonable and prudent projections in the context of a pandemic. It also ruled that it does not have jurisdiction to decide whether NAV CANADA has a duty of procedural fairness in setting charges for air navigation services.

Accessible Transportation

Interpretive Decision – Applications made Pursuant to Subsection 172(1) of the CTA – Test for Dealing with Accessibility Complaints

In Decision No. 33-AT-A-2019, the Agency:

• Recast its approach when considering applications made pursuant to section 172 of the CTA as a two-part approach to better reflect human rights jurisprudence;
• Discussed the definitions of "disability" and "barrier" that were added through an amendment to the CTA;
• Discussed the type of evidence that may be necessary for an applicant to prove that they have a disability;
• Clarified that transportation service providers must first consider general modifications to remove a barrier. If such general modifications would result in undue hardship, then individual accommodation measures may be relied upon to remove the barrier;
• Clarified that the threshold to establish undue hardship is high and that evidence in respect of the constraints must be objective, direct and, where appropriate, quantifiable.

Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 – Principles Underlying Part V of the CTA (Transportation of Persons with Disabilities)

The Supreme Court of Canada upheld Decision No. 620-AT-R-2003, in which the Agency found that a number of features of VIA Rail's new cars constituted undue obstacles to the mobility of persons with disabilities and ordered their retrofit. The Court found that the Agency reasonably concluded that VIA did not meet its onus of establishing that the obstacles created by its purchase of the cars were not “undue” by failing to provide concrete financial evidence.

Furthermore, the majority found that the Agency properly merged human rights principles with its unique statutory mandate. It held that Part V of the CTA was enacted to confirm the protection of the human rights of persons with disabilities in the transportation context and that it should be interpreted according to human rights jurisprudence.

Morten v. Air Canada, 2011 FCA 332 – Concurrent Jurisdiction of Agency and Canadian Human Rights Tribunal

The Federal Court of Appeal stated that the Canadian Human Rights Tribunal has the discretion to stay a complaint on the ground that the same complaint has previously been adjudicated by the Agency. The Court also stated that a tribunal sharing concurrent jurisdiction is not to "judicially review" another tribunal's decision, or to reconsider a legitimately decided issue in order to explore whether it might yield a different outcome.

Kormod v. Porter – Emotional Support Animals

In Decision No. 29-AT-C-A-2020, the Agency determined that the safety requirements in Porter’s emotional support animal policy are consistent with established rules and guidance and that they were adopted, and applied, in good faith to avoid obstacles for persons with disabilities while ensuring the safety and security of everyone travelling on their aircraft.

The Agency found that the emotional support animal was agitated, erratic, nervous, jumping on seats, and unwilling to lie on the floor, and that Porter was justified in refusing to transport the applicant and their ESA in light of the ESA's behaviour, as the resulting safety risks would have constituted undue hardship.

Jodhan v. Greater Toronto Airports Authority – Guidance Assistance at Airports for the Blind

In Decision No. LET-AT-A-78-2017, the Agency found that wheelchair assistance is not an acceptable substitute for guiding persons who are blind and concluded that that the fact that it was offered "is indicative of a lack of awareness of, and sensitivity to, the disability-related needs of travellers with low vision or blindness, which in turn suggests a gap in policies and procedures and/or a lack of adequate training for staff."

As an interim measure pending regulatory developments, the Agency ordered GTAA to convene consultations to assess the effectiveness of current arrangements for the provision of accessibility-related assistance for people who are blind and travelling through the Pearson Airport, identify any areas that need improvement, and determine how appropriate measures will be implemented and monitored. GTAA was further ordered to file a report on these consultations with the Agency for review, and submit a plan with the Agency for approval describing measures to be implemented and monitored.

Anderson-Murphy v. VIA Rail – Wheelchair Tie-Down Areas

In a first decision (Decision No. 29-AT-R-2017), the Agency found that the difficulty for the applicants to travel together with their mobility aids properly stored on VIA's passenger trains constituted an obstacle to their mobility and other persons with similar disabilities. The Agency further found that it could be removed without undue hardship, at a minimum through more effective guidance of personnel, and potentially by storing two scooters in one tie-down area or ensuring that each train has more than one tie-down area.

The Agency ordered VIA to provide guidance to personnel across its entire network and either make required changes across its network or submit an explicit claim of undue hardship supported by clear and detailed evidence. VIA took a number of training-related steps and proposed accommodation measures for each of its corridors which the Agency accepted in Decision No. 58-AT-R-2018.

Estate of Eric Norman, Joanne Neubauer and CCD v. Air Canada and Jazz Air LP and the Gander International Airport Authority – One Person One Fare Domestic

In Decision No. 6-AT-A-2008, the Agency found that Air Canada's and WestJet's fare policies, which call for charges on a per seat basis, constitute undue obstacles to the mobility of persons with disabilities, and that the imposition of an airport improvement fee on attendants also constitutes an undue obstacle.

It ordered that the respondents not charge a fare or fee for additional seats provided to the following persons with disabilities:

• Those persons who are required, under the terms of the carriers' tariff set out earlier in this decision, to be accompanied by an attendant;
• Those persons who are disabled by obesity; and
• Those other persons who require additional seating for themselves to accommodate their disability to travel by air.

Leave to appeal to the Federal Court of Appeal denied; leave to appeal to the Supreme Court of Canada was also denied.

Cheung v. WestJet – One Person One Fare International

In Decision No. 324-AT-A-2015 the Agency found that the applicant's disability-related needs included one attendant and the provision of one extra seat, free-of-charge, for that attendant, which WestJet had not provided. However, the Agency dismissed this portion of the application and decided not to consider the application of "one person one fare" internationally on the basis that:

• The Agency would require a full understanding of the implications of such a remedy on the international air market prior to ordering a systemic remedy that was unavailable in an application filed by one individual; and,
• The international air industry involves many factors not applicable in the domestic context and which are entirely outside of the Agency's control, including foreign laws and regulations and bilateral air transport agreements.

Leave to appeal to the Federal Court of Appeal denied; leave to appeal to the Supreme Court of Canada was also denied.

Rail Transportation

Univar v. CP – Rail Level of Service – Cessation of Service During a "Reasonable Pause"

In Decision No. CONF-4-2017, the Agency decided that CP failed to fulfill its level of service obligations when its rail service ceased completely following a fire that damaged a bridge, except during two "reasonable pause" periods, which correspond to is the period of time that it would reasonably take to rehabilitate the damage to the infrastructure. The Agency ordered that CP compensate Univar for expenses it incurred as a result of CP's failure to fulfill its level of service obligations during the cessation of service.

The Agency stated that, "a railway company is not required to provide service that is previously provided when factors beyond its control make it impossible or clearly unreasonable for it to do so… any interruption in the obligation that would otherwise exist to provide rail service on the line should be as limited as possible, consistent with the purposes of the level of service provisions."

Appeal dismissed in Canadian Pacific Railway Company v. Univar Canada Ltd., 2019 FCA 24.

Patchett & Sons Ltd. v. Pacific Great Eastern Railway Co., [1959] S.C.R. 271 – Rail Level of Service

The Supreme Court of Canada established in Patchett that the “statutory duty imposed upon the [railway company] is not an absolute duty but is only a relative one to provide service so far as it is reasonably possible to do so,” that the duty is “permeated with reasonableness”, and that “how each situation is to be met depends upon its total circumstances.”

In Canadian National Railway Company v. Northgate Terminals Ltd., 2010 FCA 147, the Federal Court of Appeal explained that the “propositions” laid out in Patchett “are guidelines that must inform any determination by the Agency of a service complaint, but they do not necessarily compel a particular outcome. That is because the determination of a service complaint requires the Agency to balance the interests of the railway company with those of the complainant in the context of the particular facts of the case.”

Paterson v. CN and BNSF – Interswitching – Facility is "Reasonably Close"

The Agency considered whether a facility was "reasonably close" to an interchange such that CN and BNSF would be required to provide reasonable facilities for convenient interswitching at the rates prescribed in the Railway Interswitching Regulations, SOR/88-41.

In Decision No. CONF-15-2018, the CTA found that, while it may consider service issues and competitiveness, the most pertinent consideration is distance when deciding whether interconnection should be ordered at a location deemed to be within 30 km of an interchange pursuant to subsection 127(4) of the CTA. It further specified that the primary consideration is radical distance, and that track distance would be considered where it is substantially longer than the radial distance.

CN v. BNSF – Interswitching – Meaning of "Interchange"

In Decision No. 35-R-2009, the Agency determined that an "interchange" is a place where the lines of two railway companies connect and where loaded or empty cars may be stored until delivered or received by other railway companies, and that this "place" may reasonably be interpreted as including an area even if the yard is not exactly situated at the connecting point of two railway lines. The Agency recognized that track layouts, space constraints and the topography of the land may affect where facilities for the storage of rails cars are built.

Appeal dismissed in Canadian National Railway Company v. Canadian Transportation Agency, 2010 FCA 166.

Greater Vancouver Water District v. British Columbia Railway Company – Railway Crossings

In Decision No. 28-R-2019, the Agency determined that its authority under subsection 101(3) of the CTA is limited to authorizing the crossing and specifying who shall maintain it. It concluded that it does not have jurisdiction to order terms and conditions in relation to a utility crossing other than the terms and conditions directly related to the suitability of the crossing, namely, that related to construction and maintenance.

The Agency authorized GVWD to construct and maintain, at its own expenses, the water main.

Normandeau and Tymchuk v. CP – Noise and Vibration

In Decision No. 35-R-2012, the Agency considered whether CP was meeting its obligation under section 95.1 of the CTA to cause only such noise and vibration as is reasonable, taking into account its level of service obligations, its operational requirements and the area where the operation takes place.

This decision established the Agency's approach to such complaints as follows:

• The Agency must first determine the existence of noise and/or vibration which constitute substantial interference with the ordinary comfort or convenience of living according to the standards of the average person.
• If the Agency does find that the noise and vibration is causing substantial interference, that leads to another level of analysis by the Agency, namely a balancing of the noise and/or vibration against the criteria set out in section 95.1 of the CTA to determine whether, in that context, the noise and/or vibration is reasonable, failing which remedial mitigation measures can be ordered by the Agency.

The Agency further stated that reasonableness is determined on a case-by-case basis based on an objective sense of what is just and proper in a given circumstance.

Investigation into Possible Freight Rail Service Issues in the Vancouver Area – Own Motion Rail Level of Service Investigation

In Letter Decision No. CONF-9-2019, the Agency examined the scope of its own-motion authority under subsection 116(1.11) of the CTA. The Agency stated that "own motion investigation powers are particularly well-suited to examining possible breaches of statutory requirements that are broad-based or systemic in nature." The Agency found that embargoes may be justified if they are imposed as a result of factors beyond a railway company's control; are exceptional measures adopted after all reasonable alternatives are exhausted rather than routine in nature; are targeted to address specific and actual challenges; are designed to minimize impacts on traffic carriage and delivery while in place; and are temporary and lifted at the earliest reasonable opportunity.

In that case, the Agency concluded that CN breached its level of service obligations when it announced its intention to impose embargoes on wood pulp shipments in September 2018, several months before rail transportation challenges emerged in the Vancouver area, and then imposed those embargoes in December 2018 rather than making every reasonable effort to deal with those challenges before unilaterally restricting the receipt, carriage, and delivery of traffic.

Marine Transportation

Application by Fundy Ocean Research Centre for Energy to use the “BBC CAROLINA” – Legal and Evidentiary Burdens and Availability of Vessels

In Decision No. 328-W-2014, the Agency explained that the legal burden of proof rests on the applicant to demonstrate, on a balance of probabilities, that the offered ships are not suitable and available. This legal burden does not shift to the offeror. However, once an applicant has provided sufficient evidence to make its arguments persuasive, an evidentiary burden will shift to the offeror such that it has the responsibility to establish that its ships are suitable and available to perform the activity.

Furthermore, in this decision, the Agency explained that the determination of whether a Canadian ship is available to perform an activity includes the consideration of factors such as:

• The underlying rationale as to why the dates stipulated in the application are crucial and why alternatives could not be considered;
• The capability of the offered ship to be at the required site on time;
• The location of the offered ship and repositioning delay;
• The normal, or usual, time period for conducting a proposed activity (e.g. seismic research off Canada's east coast); and,
• The ability of the offered ship to perform the proposed activity by the end of the required period (or relevant shipping/activity season).

Application by King Bros. Limited on behalf of Global Marine Systems Limited to use the "WAVE VENTURE" – Availability of Vessels

Decision No. 473-W-2006 involved an application for a foreign vessel to conduct "as required" cable repair activity on 24-hour notice off Canada’s West Coast during a specified time period.

The Agency noted that the application was for an "emergency" repair and maintenance program on an as required basis and that the 24-hour response time requirement specified in the application was a critical component of the activity to be performed. It further noted that the offeror's ships were not currently chartered on the west coast, that there would be significant costs and time associated with the mobilization and demobilization of the vessels to the west coast. The Agency thus determined that the offeror's vessels were not actually available to provide the activity in the application.

Application by EGS (Asia) Ltd. to use the “R/V BOLD EXPLORER”– Canadian Registration Requirement and Commercial and Economic Suitability of Vessels

In Decision No. 72-W-2020, the Agency determined that when deciding whether a suitable Canadian ship is available, it can consider a ship that will be Canadian registered by the time the coasting trade activity is to take place.

In this decision, the Agency also stated that while the Coasting Trade Act, S.C. 1992, c. 31, should not be interpreted in a way that allows applicants to impose artificial conditions on the activities described in their applications, restrictions such as deadlines for completion of the work and specific mandatory equipment are often legitimate requirements.

Key Administrative Law Decisions

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 – Standard of Review of Administrative Decisions

The Supreme Court established a rebuttable presumption that the reasonableness standard of review applies on judicial review. The Court further identified five categories where derogation from the presumption of reasonableness is warranted:

• A specific standard of review has been set out in the statute;
• A statutory right of appeal has been set out in the statute;
• Constitutional questions;
• General questions of law of central importance to the legal system as a whole;
• Questions regarding the jurisdictional boundaries between administrative bodies.

The Court established that the appellate standards of review apply when an administrative decision is challenged pursuant to a statutory right of appeal such that as that found in section 41 of the CTA. Therefore, in accordance with Housen v. Nikolaisen, 2002 SCC 33, the "correctness" standard will apply to the review of questions of law.

Canadian National Railway Company v. Richardson International Limited, 2020 FCA 20 – Standard of Review of Agency Decisions

In the first decision issued by the Federal Court of Appeal following Vavilov, the Court found that questions of statutory interpretation are subject to correctness review where an appeal is made pursuant to subsection 41(1) of the CTA.

The Court further found that the Agency failed to observe principles of statutory interpretation by applying the "implied exclusion rule" and not properly inquiring into the legislative intent behind a provision. The Court did not substitute its own statutory interpretation or decide the underlying application, but rather returned the matter to the Agency for redetermination.

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 – Procedural Fairness

The Supreme Court established principles related to the duty of procedural fairness. It explained that the content of the duty of procedural fairness depends on factors such as:

• The nature of the decision being made and the process followed in making it;
• The nature of the statutory scheme being administered;
• The importance of the decision to the affected individual;
• The legitimate expectations of the person challenging the decision; and
• Respect for the choice of procedures made by the administrative agency itself.

IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 SCR 282 and Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 SCR 221 – Institutional Procedure and Independence

In these two cases, the Ontario Labour Relations Board held full board meetings to discuss the draft decisions of specific cases. The Supreme Court established three requirements to ensure that an institutional consultation procedure does not create an apprehension of bias or lack of independence:

• the consultation proceeding could not be imposed by a superior level of authority within the administrative hierarchy, but could be requested only by the adjudicators themselves;
• the consultation had to be limited to questions of policy and law, and the members of the organization who had not heard the evidence could not be allowed to re-assess it; and
• even on questions of law and policy, the decision-makers had to remain free to take whatever decision they deemed right in their conscience and understanding of the facts and the law, and not be compelled to adopt the views expressed by other members of the administrative tribunal.

Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 – Guidelines and Adjudicative Independence

The Federal Court of Appeal found that jurisprudential guides with factual determinations designated by the Chairperson of the Immigration and Refugee Board did not unlawfully fetter the discretion or encroach upon the adjudicative independence of members. The Court noted that “soft law” tools such as policy statements, guidelines, manuals and handbooks can be used by tribunals to structure the exercise of members' discretion and promote coherence in decision-making.

Lukács v. Canada (Transport, Infrastructure and Communities), 2015 FCA 140 – Open Court Principle

The Federal Court of Appeal found that all materials placed on the Agency's "public record" in dispute adjudication proceedings are "publicly available" within the meaning of subsection 69(2) of the Privacy Act, R.S.C., 1995, c. P-21, such that the limitation on their disclosure contained in subsection 8(1) of that Act do not apply. Thus, all documents on the "public record" in such proceedings are accessible to the public by virtue of the open court principle.

Lukács v. Canada (Transportation Agency), 2014 FCA 76 – Quorum

The Federal Court of Appeal confirmed the validity of the quorum rule in the Agency's Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Dispute Adjudication Rules), which provides that "in all proceedings before the Agency, one member constitutes a quorum". The Court rejected the argument that the Rules are "regulations" subject to Governor in Council approval within the meaning of subsection 36(1) of the CTA.

Lukács v. Canada (Transport, Infrastructure and Communities), 2015 FCA 200 – Validity of the Dispute Adjudication Rules

The Federal Court of Appeal confirmed the validity of the Agency's Dispute Adjudication Rules. The Court confirmed that the provisions authorizing the Agency to stay its own decisions or orders are intra vires. It also stated that the Rules provide sufficient flexibility to the Agency to allow it to adjudicate disputes in a manner that fulfils the requirements of procedural fairness and they are within the power conferred upon the Agency to make rules.

Lukács v. Canada (Transportation Agency), 2016 FCA 202 – Discretion to Investigate a Complaint

The Federal Court of Appeal found that the Agency has no statutory duty to inquire into complaints regarding compliance with the CTA and its regulations. Rather, the language of the CTA is permissive and imposes no obligation to hear every complaint; the Agency possesses discretion and broad powers to ensure compliance.

Delta Air Lines Inc. v. Lukács, 2018 SCC 2 – Discretion to Investigate a Complaint

The Supreme Court considered the Agency's discretion under section 37 of the CTA to "inquire into, hear and determine a complaint concerning any act, matter or thing prohibited, sanctioned or required to be done under any Act of Parliament that is administered in whole or in part by the Agency".

It found that the following considerations may be relevant in the exercise of this discretion:

• Whether the complaint is made in good faith, timely, vexatious, or duplicative;
• Whether hearing the complaint is in line with the Agency's workload and prioritization of cases;
• Whether the claim raises a serious issue to be tried; and,
• Whether the complaint is based on sufficient evidence.