Enforcement of

Administrative Offences
MOS 3306B, 2024
 International Source
• Chicago Convention: Article 12
 Domestic Sources of Offences
1. Aeronautics Act (AA) and Canadian Aviation
Regulations (CARs)

2. Criminal Code (CC)

 Types of Aviation Offences

Administrative Judicial
(AA & CARs) (AA & CC)

oral monetary suspension Summary

Indictable
counseling penalty of CAD Conviction
 Types of Judicial Offences

Summary • Max usually $5000 and up to 2 years in prison

• limitation period to charge (usually 12 months after
offence)
Conviction • No fingerprinting required; trial by judge

• Max includes life in prison

Indictable • No limitation period

• Fingerprinting; usually D can choose trial by judge and jury

• State can prosecute as summary conviction or indictable

Hybrid offence
• Different maximum jail terms
 CARs

Enabling (e.g., power to make

standards)

Administrative (e.g., power to inspect)

Offence Creating (around 900 in total)

 Offences Under AA and CARs
• By S. 7.3(3) of the Aeronautics Act, violation of an
offence creating provision is, unless stated otherwise,
punishable by way of summary conviction
– 7.3(4): max is a fine of $5000 (no prison time)

• However, in effect only a small number of offence

creating provisions (18) are summary conviction
offences.
– the vast majority are “designated provision” offences
under S. 7.6
• monetary penalty
• S. 103.08 of CARs
 Offences under AA and CARs

Designated Summary
Provision? Conviction Offence
If no, then
(Check 103.08, (unless stated to be
Schedule II) indictable or hybrid)
 Top 2 Most Contravened Regulations
2. 602.01.1
“No person shall operate an aircraft in such a
reckless or negligent manner as to endanger or
be likely to endanger the life or property of any
person”
– “negligence”: doing something a reasonable
person [pilot] would not do, or omitting to do
something a reasonable person would do”
Van Nice v Canada (Minister of Transport) (TATC, 2004 (Review))
 Real-Life Examples
1. Conducting circuits around an airport with
other airplanes and with an agreed order of
landing, then cutting ahead of the other
planes causing them to take evasive action.

2. Attempting to rush another aircraft on the

takeoff process, then having to veer when
the other aircraft suddenly stops.
1. 602.31(1)
Other Important Designated Provisions

1. Alcohol or Drugs – Crew Members

– S. 602.03
– $5000

2. Fitness of Flight Crew Members

– S. 602.02
– $5000
 Refusal to Issue or Amend a CAD
Aeronautics Act Ss. 6.71, 7.21
• incompetence of the applicant;
• failure to meet the qualifications or fulfill the
conditions necessary for the issuance or
amendment;
• public interest reasons
• failure by the applicant to pay monetary
penalties for which the “Tribunal” has issued a
certificate.
 Suspension, Cancellation or Refusal to
Renew CAD
Aeronautics Act S. 6.9, 7, 7.1, 7.21
• suspend or cancel for contravention of any provision in Part
I of the Act or the regulations made under the Act;
• suspend on the grounds that an immediate threat to
aviation safety exists or is likely to occur;
• suspend, cancel or refuse to renew on the grounds of:
– incompetence
– ceasing to meet the qualifications or fulfill the conditions subject
to which the document was issued
– public interest reasons
• suspend or refuse to renew for failure to pay monetary
penalties for which the “Tribunal” has issued a certificate of
non-payment.
 Extraterritoriality
• Aeronautics Act Ss. 4(1),
4.1
 Source of Enforcement
International Domestic
• Chicago Convention • Aviation Enforcement
– Article 12 Branch of Transport Canada
• enforcement mandate – enforcement of
administrative offences

• Prosecution through Court

System
– enforcement of judicial
offences
 What Initiates Enforcement
• Citizen complaints

• Police reports

• Air Traffic Services infraction reports

• Transport Canada routine inspections

• Transport Canada field operations

• Transport Canada investigations of regulatory violations

• Accident investigations
 Enforcement Process
• All TCCA inspectors have
authority to initiate
investigations

• However, special
Aviation Enforcement
inspectors conduct
comprehensive
investigations
– alongside RCMP if
summary/indictable/
hybrid offences under AA
Enforcement Process
 Investigation
• Once a Detection Notice has been filled out,
AEB has two options:
1. Oral counseling (43% of cases)
• if not disputed/minor or inadvertent/no safety
hazard/good attitude towards future compliance
• not reflected on personal file or enforcement record

2. Send the Notice to the Regional Aviation

Enforcement Office to initiate a comprehensive
investigation
 Comprehensive Investigation
• Attempt to contact alleged offender in person
or by telephone

Plus

• Letter of Investigation sent by mail

– allowed 30 days from date of letter to respond to
allegations
– investigation continues
Comprehensive Investigation
 Comprehensive Investigation
• If the investigation is not terminated, the case is forwarded
to the Regional Manager Aviation Enforcement (RMAE)

• If the RMAE concurs with the findings of the investigation,

she decides whether to
– proceed judicially; or
– proceed administratively

• If proceeds administratively, then issues

• Notice of Assessment of Monetary Penalty
• (possibly) Notice of Suspension
– greater deterrent/concern for aviation safety
– CARs 103.03: must return CAD to the Minister (via the RMAE)
 Comprehensive Investigation
(Administrative)
• 30 days to
– meet with Regional Aviation Enforcement Office to
negotiate type or amount of penalty and/or
• findings of investigation are non-negotiable; admitting
guilt and negotiating amount you will pay
– initiate review with TATC
• stay of suspension possible pending review
• can meet with RMAE any time prior to review
• time period may be extended in certain circumstances
Transportation Appeal Tribunal of Canada –
Review
• Aeronautics Act S. 7.91 – Review of monetary
penalty

• Aeronautics Act S. 6.72, 6.9(3), 7(3), 7.1(3)

– review of refusal to issue or amend a CAD or
cancellation, suspension, refusal to renew a CAD
Transportation Appeal Tribunal of Canada –
Review
• Aeronautics Act S.7.91(3): Affords
“opportunity consistent with procedural
fairness and natural justice to present
evidence and make representations” before
an independent tribunal
– formerly: Civil Aviation Tribunal

• Expertise in transportation; can apply

legislation to a technical area
Transportation Appeal Tribunal of Canada –
Review
• informal and flexible;
lawyer not required
 Note
• An administrative tribunal decision can serve
as a precedent.

• Thus, like courts, the TATC directs public policy

within its area of expertise.
Transportation Appeal Tribunal of Canada –
Review
• TATC Act
– S. 12 – review is heard by a single member
– S. 15 – rules of evidence are informal; subject to
considerations of fairness and natural justice

• Aeronautics Act S. 7.91(4): The Minister has the

burden of proving the contravention took place

• TATC Act S. 15(5): The burden is discharged

establishing the elements of the offence on a
balance of probabilities
 Standards of Proof
Balance of Probabilities Beyond a Reasonable Doubt
 Designated Provision Offences
• Note: mens rea (guilty mind) requirement for
serious criminal offences relaxed; only the
actus reus (guilty act) need be proven
– Hence, S. 8.4: owner, operator, pilot-in-command
of an aircraft and operator of an aerodrome can
punished for the acts or omissions committed by
others

• Documentation is very important: e.g.,

journey logbook; navigation logs; flight plans
 Due Diligence Defence
• S. 8.5 of AA – a defence of due diligence
applies to all offences under AA and CARs
– offences do not impose absolute liability; only
strict liability
– due diligence goes to state of mind or effort of the
alleged offender
 Codifies
R. v. Sault Ste. Marie (City) (1979, SCC)
• The defence of due diligence "will be available
if the accused reasonably believed in a
mistaken set of facts which, if true, would
render the act or omission innocent, or if he
took all reasonable steps to avoid the
particular event.”
Veideman v. Canada (Minister of Transport)
(2003, FC)
To succeed with a due diligence defence one or
more of the following must be proved:

1. That the document holder took reasonable steps to

obtain all relevant information necessary for the
discharge of his or her obligations set out in the CARs;

2. That notwithstanding the document holder's

obligations as set out in the CARs he or she was not in
control of the events that led to the infraction;
Veideman v. Canada (Minister of Transport)
(2003, Fed. Ct.)
3. That the appropriate exercise of the authority and
responsibility given the document holder did not
prevent the infraction;

4. That the document holder did not have a

reasonable opportunity to discover an error made by
another document holder from whom he or she
accepted responsibility;

5. That an equipment failure prevented the

document holder from discharging his or her duty.”
 Shifting Burden

MT has burden of If MT meets burden,

proving act or offender must If offender meets
ommission on establish due burden, then
balance of diligence on balance innocent of offence
probabilities of probabilities
Transportation Appeal Tribunal of Canada –
Appeal
• Following the review hearing, a written decision is
provided along with reasons.

• Aeronautics Act S. 7.2: in certain circumstances a

review of Tribunal can be appealed to the Tribunal
– 30 days from Review Hearing determination to appeal
• cannot be extended!

• TATC Act S. 13: appeal is heard by three members

of the TATC
– written decision with reasons provided
 Note
• TATC Review involving
– decisions made on the basis of medical grounds, incompetence,
lack of qualifications; or
– a suspension or cancellation of a CAD because of public interest
can be referred by the TATC back to the Minister for
reconsideration.

• If so
– the Minister’s decision is final
– no further appeal to the TATC is available under the Aeronautics
Act
• TATC Act S. 21: ”A decision of an appeal panel
of the Tribunal is final and binding on the
parties to the appeal”
– “privative clause”
– signals deference: courts are not to entertain an
appeal of the correctness of the Tribunal’s
decision made within the scope of its authority
 Judicial Review
• However, this is subject to the state’s duty to be
fair in exercising discretion over citizens and their
commercial interests
– A judge can review the reasonableness of a TATC
determination in addition to whether the
determination is outside the scope of its authority

• Fairness of a TATC determination can be reviewed

by the Federal Court
– 30 days to initiate review
 Review Appeal Judicial
TATC

TATC

FC
of MT of TATC Review
decision review of TATC
appeal
Why is this permitted?

Rule of Law
(maintained
by Courts)

Common Law Constitution

 Delegated Power
Constrained by Rule of Law

Minister of
Transport
Parliament
Statutory
TATC
Bodies
 May be Aspires to
Rule of Capricious Reasonable
Rule of Law
Person and Unfair and Fair
Decisions Decisions
 Judicial review
As a matter of common law and constitutional
law, decisions of an administrative tribunal
(privative clause notwithstanding) are subject to
appeal on two main grounds:

1. The decision is unreasonable.

2. The decision is ultra vires.

 Reasonableness: Dunsmuir v New
Brunswick (2008, SCC)
• “certain questions that come before administrative tribunals
do not lend themselves to one specific, particular result.
Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of
appreciation within the range of acceptable and rational
solutions. A court conducting a review for reasonableness
inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and
to outcomes. In judicial review, reasonableness is concerned
mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also
concerned with whether the decision falls within a range of
possible, acceptable outcomes which are defensible in
respect of the facts and law.”
 Ultra Vires
• Administrative power cannot be exercised
– beyond what is delegated
– such that discretion is abused
– in a way that does not conform with natural
justice; or
– in a way that does not conform with fundamental
justice
 Ultra Vires: Technical Defects
1. The tribunal acts outside of its authority.

2. The tribunal inappropriately delegates some of its decision

making powers.

3. There is a failure to comply with the terms and conditions

of the appointment of members to the tribunal.

4. A member is not qualified to be on the tribunal.

5. A decision is made in the absence of a prescribed quorum.

 Ultra Vires: Abuse of Discretion
• Generally, a tribunal should consider only
relevant circumstances and refuse to consider
irrelevant circumstances.
 Ultra Vires: Natural Justice
The first two principles go back thousands of
years, and embody the idea of procedural justice

1. audi alteram partem (“hear the other side”)

– includes being given notice of the hearing, the
opportunity to bring witnesses and the chance to
cross-examine witnesses, and being given
reasons for a decision
 Ultra Vires: Natural Justice
2. nemo sibi esse judex vel suis jus dicere debet
(“no person should act as judge on his own
behalf or speak the law for his own (ends)”
– excludes bias and the appearance of bias (i.e.,
the apprehension of bias to a reasonable person)
 Ultra Vires: Natural Justice
3. Doctrine of Fairness: basically a recent
extension of these two principles from cases
where legal rights (e.g., in relation to
property or persons) are affected, to cases
where only individual interests (e.g.,
segregation of prisoners) are affected.
 Ultra Vires: Fundamental Justice
• S. 7 Charter of Rights and Freedoms:
Everyone has the right to life, liberty and security of
the person and the right not to be deprived thereof
except in accordance with the principles of
fundamental justice.
– Courts interpret “fundamental” as something
more than procedural
 Ultra Vires: Fundamental Justice
• “It is undoubtedly of the greatest importance
to a person whose life, liberty and security of
the person are at stake to have the
opportunity to present his case as fully and
adequately as possible.” (Re Howard and
Presiding Officer of Inmate Disciplinary Court
of Stony Mountain Institution (1985, Fed. C.A.)
– E.g., circumstances may be such that an individual
has a right to counsel
 Federal Court Act
Under S. 18.1(4), the Federal Court may grant relief if
an administrative tribunal
• acted without jurisdiction, acted beyond its
jurisdiction or refused to exercise its jurisdiction;

• failed to observe a principle of natural justice,

procedural fairness or other procedure that it was
required by law to observe;

• erred in law in making a decision or an order,

whether or not the error appears on the face of the
(continued)

• based its decision or order on an erroneous finding of

fact that it made in a perverse or capricious manner or
without regard for the material before it;

• acted, or failed to act, by reason of fraud or perjured

evidence; or

• acted in any other way that was contrary to law.

 Removal from Record of Penalty or
Suspension
• S. 8.3 of the
Aeronautics Act