Proceedings of the Standing Senate Committee on
Transport and Communications

Issue 18 - Eighth Report of the Committee


Tuesday, November 27, 2001

The Standing Senate Committee on Transport and Communications has the honour to present its

EIGHTH REPORT

Your Committee, to which was referred Bill C-34, An Act to establish the Transportation Appeal Tribunal of Canada and to make consequential amendments to other Acts, has, in obedience to the Order of Reference of Tuesday, November 6, 2001, examined the said Bill and now reports the same without amendment, but with observations which are appended to this report.

Respectfully submitted,

LISE BACON

Chair


APPENDIX

to the Eighth Report of the Standing Senate Committee on Transport and Communications

The Committee considers the bill to establish the Transportation Appeal Tribunal Appeal Tribunal of Canada (the proposed tribunal) to be an advance in efforts by the government to achieve a higher level of compliance with safety regulations and, hence, to improve safety. The use of administrative penalties (such as those included in Bill C-34), which can be appealed to an administrative tribunal, have been shown to achieve better compliance.

The Committee has a concern, however, similar to that raised after its review of Bill C-14 the Canada Shipping Act. It appears that a person who has been assessed an administrative penalty and appealed it, and who was not satisfied with the ruling of the appeal tribunal, will not in all cases have recourse to the courts to have his grievance heard. The grounds for appeal to a Federal Court will be narrow, such as whether the tribunal had acted within its jurisdiction, or with appropriateness. The penalty may not be appealed on the merits of the case.

Our concern remains, but has been tempered somewhat by our closer review of the workings of the existing Civil Aviation Tribunal (the existing tribunal) and its fifteen years of operation. The existing tribunal appears to have achieved an enviable record of working expeditiously and efficiently, and in a non-legalistic way which has made it more open and responsive to all parties.

At the same time, the existing tribunal appears to have maintained a level of independence and impartiality which has allowed it to operate in a manner that respects the principles of fairness and natural justice. No evidence shows that industry feels it has not had adequate recourse when it felt it had been penalized unjustifiably. In addition, there are a number of (six) applications for judicial review before the Federal Court currently, demonstrating that this means of recourse is regarded as useful and is used.

The Committee believes that, with adequate reassurance that the concerns noted above in regard to appeals can be met, the bill may go forward as written. The reassurance needed is that the proposed appeal tribunal will be able to operate with the same level of independence as the existing tribunal has operated. For this to occur will require recognition by the Minister and his officials, especially those in the modes which will newly come under the tribunal, that this independence is crucial to its successful operation. The Committee believes that with this recognition, the new tribunal will be able to operate in a manner that assures fairness and natural justice, and that any shortcomings will be adequately dealt with by the Federal Court.

Therefore, the Committee urges the Minister formally to restate the government's commitment to the independence of the new tribunal and to direct his officials to take all necessary action to assure that the new tribunal will be able to operate in like manner to the existing tribunal. To ensure that this is achieved, we request the Minister to report back to this Committee two years after the new tribunal receives its first appeal in the rail or marine modes and inform the Committee of the number of appeals received, the number decided upon and the number for which application has been made to the Federal Court for judicial review. At that time, the Committee will examine how the new Tribunal has functioned and, if the Committee finds that the process is lengthy or costly, the Committee will consider recommending that the Panel of the Tribunal be given the power to alter or revoke decisions of the Minister.

In conclusion, the Committee urges the Minister take action noted above to ensure that the new tribunal closely emulates the existing tribunal (which it will replace) in its high level of operating efficiency, its procedural fairness, and its positive effect on transportation safety.


Back to top