By Nadine d’Entremont, Deputy Registrar, TATC
The Transportation Appeal Tribunal of Canada (TATC) is a quasi-judicial tribunal established to deal with administrative issues arising from a variety of transportation sectors. TATC provides recourse to a person in the aviation, marine, or railway field affected by administrative actions taken by the Minister of Transport under various federal statutes. TATC is mandated to provide prompt, fair and informal review and appeal hearings for those who have received notice from the Minister pertaining to an administrative action which may address enforcement, licencing or medical issues. The Tribunal hears the cases before it and decides whether the Minister’s action was appropriate. Depending on what is stated in the statute at issue, TATC can uphold the Minister’s decision, substitute its own decision, or refer the matter back to the Minister for reconsideration.
The Transportation Appeal Tribunal of Canada (TATC) was originally established as the Civil Aviation Tribunal (CAT) in 1986 under part IV of the Aeronautics Act following the recommendations made by the Commission of Inquiry on Aviation Safety. CAT’s jurisdiction eventually expanded, and in 2003 it became TATC, a multi-modal transportation tribunal which provides reviews for the aviation, marine and rail transportation sectors.
Headed by the acting Chairperson, John Badowski, the Tribunal currently has 29 part-time Members residing across Canada. TATC’s main office is located in Ottawa, Ontario, although hearings are held throughout the country. Members are appointed based on their expertise in a transportation sector and are assigned to adjudicate cases accordingly. TATC is independent from any other government department and reports to Parliament.
TATC has jurisdiction in respect to reviews and appeals under a variety of marine legislations-
The Canada Shipping Act, 2001 (CSA, 2001) addresses safety in marine transportation and protecting the marine environment. Any person who has received a notice from the Minister of Transport under the following sections may apply to the Tribunal for a review of the Minister’s decision:
16(4) – Refusal to issue a Canadian maritime document (CMD)
20.1 – CMD suspension, cancellation or refusal to renew
229(1) – Notice of Violation
231.1 – Notice of Default (Assurance of Compliance not complied with)
For instance, a person who has received notice of a refusal to issue a medical certificate on the basis of a physical or mental medical condition pursuant to section 16(4) of the CSA, 2001 may apply to the Tribunal for a review. Similarly, a person who receives a medical certificate declaring him or her fit for sea service with limitations pursuant to section 278(4)(a) of the Marine Personnel Regulations may also seek recourse to the Tribunal. Furthermore, enforcement action taken by the Minster pursuant to section 229(1) of the CSA, 2001 may also be reviewed by the Tribunal. Examples of these enforcement actions could include (but are not limited to) monetary penalties for not meeting the requirements of a vessel’s machinery/equipment, discharging a pollutant, jeopardizing the safety of a vessel, or not having a valid Canadian maritime document.
TATC also has oversight of specific sections under the Marine Transportation Security Act which addresses marine transportation security, notice of violations issued under the Canada Marine Act and, monetary penalties issued under the Navigation Protection Act.
From 2012 to 2013, TATC received 89 medical and 98 enforcement and licencing requests for reviews from the marine sector. A case summary is given below to bring context on the type of marine cases that are reviewed by the TATC:
The Minister of Transport issued a Notice of Violation to the Applicant, the Chief Engineer onboard a vessel, for discharging a prescribed pollutant near a harbour during a refueling operation. A penalty of $1250.00 was imposed by the Minister for violating section 187 of the Canada Shipping Act, 2001. The Member concluded that the Applicant’s mistake of opening the wrong fuel tank fill valve would not have resulted in the fuel discharge had it not been for the Senior Engineer supervising the refueling operation, who failed to plug the scuppers. Consequently, the Minister failed to prove, on a balance of probabilities that the Applicant’s action of opening the wrong valve led directly to the discharge of fuel oil. The penalty of $1250.00 was dismissed.
There are two levels of hearings at TATC, one being review hearings and the other being appeal hearings. A review hearing is before a single Member and is a review of the administrative action taken by the Minister. An appeal hearing is before a panel of three Members, and considers the determination and reasons resulting from the review hearing. A person may choose to represent himself or herself before the Tribunal or may be represented by any other person, including a lawyer. Most TATC hearings are open to the public and are less formal than court proceedings. A court reporter is present at each hearing to record the proceedings.
At a review hearing, both parties have the opportunity to present witnesses and documentary evidence. Both parties may also cross-examine the opposing party’s witnesses. After the hearing, the Member who conducted the review must render a determination, including written reasons, to all parties to the proceedings.
Appeal hearings do not generally involve new evidence, however both parties are entitled to make arguments regarding the review determination. After the hearing, the three Member panel must provide a decision, including written reasons, to all parties.
TATC works to ensure that enforcement of transportation safety is administered fairly and consistently across Canada. Anyone in the transportation industry who has been given notice of an administrative action by the Minister, related to a statute and provision over which the TATC has jurisdiction, may benefit from having a hearing before the TATC.
For more information on TATC, visit www.tatc.gc.ca.