Test articulated by panel provided no insight into what a segment of the public was

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Test articulated by panel provided no insight into what a segment of the public was

Application for judicial review of panel’s decision upholding agency’s decision to issue administrative penalty against applicant for contravening s. 57(a) of Canada Transportation Act by operating air service without license. Applicant was hotel casino and spa in New Jersey. Between July 2008 and March 2009, two aircraft owned and operated by applicant made ten flights between Atlantic City and Toronto or Montreal to transport some of applicant’s Canadian customers. Agency issued notice of violation and $25,000 penalty. Applicant filed request for review and argued flights were only offered to high-level customers and entirely at applicant’s discretion, so were not publicly available. Agency argued guests were simply subset of public. Member found applicant had not contravened s. 57(a) because it did not publicize flights and members of public could not inquire about them or book them, and no customer had reasonable expectation of receiving flight. Agency appealed and panel found nature of service determined whether flights were publicly available, and customers who received free flights and continued spending at high level would likely receive more free flights, so member’s finding premium clients did not have reasonable expectation of free flights was incorrect. Panel found applicant was operating publicly available service, but reduced penalty to $12,500 as it was first offence. Applicant argued decision was unreasonable as panel failed to articulate intelligible standard. Application allowed. Test articulated by panel, that service available to only segment of public was publicly available, bordered on tautological as it provided no insight into what a segment of the public was. Member’s test, on the other hand, provided useful tool for analyzing whether users were segment of public. While panel provided cogent reason for rejecting member’s test, same could not be said for test it substituted. Panel gave no explanation for preferring vague test and its decision was unreasonable. Not appropriate for court to articulate test given expertise of tribunal, so matter returned to Transportation Appeal Tribunal for redetermination.
Marina District Development Co. v. Canada (Attorney General) (Jul. 18, 2013, F.C., John A. O’Keefe J., File No. T-324-12) 231 A.C.W.S. (3d) 295.

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