Pan American World Airways Inc. v. The Queen et al., 1981 CanLII 215 (SCC), [1981] 2 SCR 565
Supreme Court of Canada
Facts
The appellant air lines, all three having their headquarters and home bases in the United States, challenge the legality of fees exacted from them by the federal Minister of Transport, on behalf of the Canadian Government, for certain telecommunication and en route navigation services provided at their request All the services were provided by and from facilities within Canada, and related to flights over the polar route between points on the west coast of the United States and Europe and over the North Atlantic route between points in eastern United States and Europe. None of the flights landed in Canada, although in some instances they passed through air space over Canadian territory. The plaintiffs’ declaratory action and a claim for refund of fees paid under protest were dismissed by Mahoney J., who allowed a counterclaim of the Crown in right of Canada for the recovery of unpaid fees. His judgment was affirmed by the Federal Court of Appeal which simply agreed with his decision and agreed, in substance, with his reasons.
Issue(s)
The appellants founded their action and their refund claim on two grounds. They contended, first, that they were entitled to rely on the Convention on International Civil Aviation (the Chicago Convention), signed on December 7, 1944 and in force on April 4, 1947. Both Canada and the United States are parties to the Convention. In order to support this reliance they were required, of course, to show that the Convention, and particularly articles 12 and 15 thereof which were the focus of their submission, had become part of the domestic law of Canada. They asserted that it had, in its relevant provisions, become effective as Canadian law by virtue of s. 6 of the Aeronautics Act, R.S.C. 1970, c. A-3 and the Air Regulations promulgated thereunder, especially Air Regulation 500.
Discussion
[2 SCR 565 at Page 568]
Turning then to the first of the two grounds advanced by the appellants, I reproduce articles 12 and 15 of the Chicago Convention which are as follows:
Article 12
Rules of the Air
Each contracting State undertakes to adopt measures to insure that every aircraft flying over or maneuvering within its territory and that every aircraft carrying its nationality mark, wherever such aircraft may be, shall comply with the rules and regulations relating to the flight and maneuver of aircraft there in force. Each contracting State undertakes to keep its own regulations in these respects uniform, to the greatest possible extent, with those established from time to time under this Convention. Over the high seas, the rules in force shall be those established under this Convention. Each contracting State undertakes to insure the prosecution of all persons violating the regulations applicable.
Article 15
Airport and similar charges
Every airport in a contracting State which is open to public use by its national aircraft shall likewise, subject to the provisions of Article 68, be open under uniform conditions to the aircraft of all the other contracting States. The like uniform conditions shall apply to the use, by aircraft of every contracting State, of all air navigation facilities, including radio and meteorological services, which may be provided for public use for the safety and expedition of air navigation.
Any charges that may be imposed or permitted to be imposed by a contracting State for the use of such airports and air navigation facilities by the aircraft of any other contracting State shall not be higher,
(a) As to aircraft not engaged in scheduled international air services, than those that would be paid by its national aircraft of the same class engaged in similar operations, and
(b) As to aircraft engaged in scheduled international air services, than those that would be paid by its
[2 SCR 565 at Page 569]
national aircraft engaged in similar international air services.
All such charges shall be published and communicated to the International Civil Aviation Organization: provided that, upon representation by an interested contracting State, the charges imposed for the use of airports and other facilities shall be subject to review by the Council, which shall report and make recommendations thereon for the consideration of the State or States concerned. No fees, dues or other charges shall be imposed by any contracting State in respect solely of the right of transit over or entry into or exit from its territory of any aircraft of a contracting State or persons or property thereon.
I do not see how article 12 can apply here, accepting that it has been brought into force in Canada. The regulation-making power in s. 6 of the Aeronautics Act relates to air navigation over Canada and conditions under which aircraft registered in Canada may be operated over the high seas or any territory not within Canada. Regulation 500 of the Air Regulations, now Consolidated Regulations of Canada, 1978, c. 2 reads as follows:
500. All Canadian aircraft in flight over the high seas shall comply with the Rules of the Air contained in Annex 2 to the Convention as amended from time to time.
The incorporation of Annex 2 of the Convention, dealing with rules of the air, and of supplementary procedures fixed thereunder has no effect in this case when there is a limitation under Regulation 500 to Canadian aircraft. Moreover, I do not see how the Annex can affect adversely Canadian competence to charge for facilities and services that it provides within Canada.
Nor is the appellants’ position any better under article 15 of the Convention. In so far as the article deals with charges for the use of air navigation facilities, it merely requires that they be imposed on a non-discriminatory basis and there was no suggestion here that there was any violation of this requirement.
