What’s “Canadian” control?
October 31, 2007 By Drew McCarthy
How curious. And, in the immortal words of Lewis Carroll, it gets “curiouser and curiouser!”
The HAC is worried that a decision by the Canadian Transportation Agency
(CTA) from November 2006
regarding Ascent Helicopters Ltd.'s application for a licence "to
operate a domestic service, small aircraft" could have some very
negative repercussions for the Canadian helicopter industry.
Here's an excerpt from the CTA's November 2006 decision:
"With respect to the requirement that the applicant be controlled in
fact by Canadians, the Agency notes that the applicant has a
substantial and close relationship with a non-Canadian who is also a
shareholder of the applicant. The Agency is of the opinion that the
relationship that exists between the applicant and the non-Canadian
shareholder results in this person being able to exert great influence
over the affairs of the applicant. In addition, the evidence
demonstrates that the influence is dominant or determining and results
in this person exerting control in fact over the affairs of the
applicant. In light of the above, the Agency finds that the applicant
has not satisfied the Agency that it is Canadian as defined in
subsection 55(1) of the CTA in that it has not satisfied the Agency
that it is controlled in fact by Canadians."
How curious. And, in the immortal words of Lewis Carroll, it gets
"curiouser and curiouser!" The CTA decision ends with the sentence,
"Due to the confidentiality of the documents filed by the applicant, a
separate letter will be sent to the applicant, in confidence, setting
out the detailed reasons for the Decision."
So fine, Ascent Helicopters has received more detailed reasons for the decision,
but where does that leave the rest of us? What determines "exerting
great influence" and why does this undermine the idea of Canadian
control? How much influence is too much influence?
One of the key elements of the rule of law is predictability. This
decision leaves us wondering. We don't know what to expect or what we're supposed to do.
Ascent has now applied to the Minister of Transport for an exemption from the requirements, under
the CARs and section 62 of the CTA, to be "Canadian," in order to
operate a domestic air service.
To read the HAC's reasons for concern, go to HAC's letter to the Minister of Transport regarding an
exemption from the requirements, under the CARs and section 62 of the
CTA, to be "Canadian."
To take part in our HELICOPTERS Poll on the topic, you can go to our home page to register your vote.