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21 May 2014
Decisions of the Canadian Transportation Agency (CTA) may be appealed directly to the Federal Court of Appeal, but only with that court's leave and where the point in issue is either the CTA's jurisdiction or a question of law. There is no right to appeal findings of fact. A recent Federal Court of Appeal decision in which leave to appeal was denied illustrates yet again that the court is not inclined to stretch the concept of what amounts to a legal issue in order to assert its jurisdiction. CTA decisions are accorded quite significant deference.
Before turning to the facts in Nawrot v Sunwing(1) the possible challenges to a CTA decision should be considered. First, the CTA is authorised to review its own decisions and orders if there has been a "change in the facts or circumstances". It will sometimes undertake such a review and may rescind or vary a decision where the circumstances warrant. However, the CTA is rather sparing in the exercise of its review jurisdiction and insists on a clear showing of a change in the underlying facts or circumstances as an essential precondition of embarking on such a review. There is also the possibility of a political review and variation of CTA decisions (as well as of rules and regulations made by the agency) by the responsible minister, acting through the governor in council. However, this process is rarely resorted to. Finally, attempts have been made to invoke the jurisdiction of another tribunal to reconsider a matter which the agency has already decided. In the past, the Canadian Human Rights Commission has asserted a right to conduct an independent investigation of complaints after rejection of those complaints by the CTA, notwithstanding that the agency was acting within its jurisdiction. As a result of Supreme Court and Federal Court of Appeal decisions in late 2011, it is now virtually certain that any such attempt will fail.
The Canada Transportation Act specifically provides that the CTA's determination of facts within its jurisdiction "is binding and conclusive". Furthermore, its determination of questions of law will almost always be reviewed on a deferential standard. Such determinations will not be overturned unless they are found to be unreasonable. In short, the CTA is a senior quasi-judicial body with authority to decide with finality most issues falling within its jurisdiction.
Nawrot arose out of a flight which was twice delayed. A family group complained and the CTA dismissed the claims. Everything turned on credibility. According to the claimants, they were denied boarding following the second flight delay despite having arrived at the counter within the prescribed check-in time. According to the carrier, they arrived late.
On the face of it, the case looks like a common factual determination which is final and binding. The claimants, in a case which was argued with more vigour and skill than one commonly sees where the financial amount at stake is so modest, attempted to distinguish the case by concentrating not on the facts which had been found, but on the way in which the CTA went about finding those facts. They appeared to have a foot in the door because of a curious feature of the case which must have been the result of a clerical error. The same flight was twice delayed. The carrier made no attempt to justify the first delay but formally admitted responsibility to pay compensation. The carrier's defence addressed only the reasons for the denial of boarding following the second delay. Nevertheless, the CTA dismissed the entire complaint, even that based on the first delay. This suggested that there may have been something amiss in the way in which the CTA assessed the evidence.
After an exhaustive review of the evidence, which included tickets for the train to Gatwick Airport and electronic records showing the time when the family checked in to an airport hotel following the denial of boarding, counsel for the claimants alleged various errors in the fact determination process which, he said, amounted to errors in law. These included failure to give adequate reasons, failure to analyse relevant evidence, improper application of an elevated standard of proof, failure to apply mandatory legal provisions and improper fettering, by the CTA, of its own discretion.
None of these arguments were successful. The court dismissed the application for leave with costs. In keeping with its standard practice, the court did not give reasons for its decision.
For further information on this topic please contact Gerard A Chouest or Carlos P Martins at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email (email@example.com or firstname.lastname@example.org). The Bersenas Jacobsen Chouest Thomson Blackburn website can be accessed at www.lexcanada.com.
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Gerard A Chouest