Case: Canada (Transport) v. ITPS (Canada) Ltd., 2026 FCA 112 (CanLII)
Keywords: military pilot training; “near-miss”; balance of convenience
Synopsis:
A military pilot training company (“ITPS”) operates out of London International Airport (“YXU”). A “near-miss” incident involving ITPS aircraft occurs on approach to YXU. Citing the “near-miss incident among others”, the Minister of Transport issues a Notice of Restriction pursuant to s. 5.1 of the Aeronautics Act, R.S.C. 1985, c. A-2 limiting “Specialized Air Combat Training” to an area near North Bay, Ontario called CYR 599. (See paras. 1-2).
In response, ITPS seeks, and the Federal Court (Pallotta J.) grants, an interlocutory injunction Order prohibiting the Minister from enforcing the Notice. (See para. 1). The Minister of Transport appeals. The Federal Court of Appeal (Gleason, Laskin, and Locke J.A.) allows the appeal and sets aside the Order. (See para. 12).
Importance:
As noted by the Court of Appeal, the question was whether ITPS had established:
- there is a serious issue to be tried in the underlying application for judicial review;
- that ITPS would suffer irreparable harm if the injunctive relief was not granted; and
- the balance of convenience favoured the issuance of the injunction. (See para. 4; RJR-MacDonald Inc v. Canada (Attorney General), 1994 CanLII 117).
The Court of Appeal focused on the Federal Court’s “balance of convenience” analysis. At para. 52 of the Federal Court’s reasons, the Minister’s argument was described as follows:
The Minister submits he does not have to show that the Notice will reduce risks posed by SACT activities. Relying on Harper v Canada (Attorney General), 2000 SCC 57 at paragraphs 9-10 [Harper] and RJR-MacDonald, he submits that the exercise of the statutory authority to issue the Notice restricting SACT is presumed to promote the public interest, and an injunction that suspends the operation of a law, regulation, or policy is presumed to harm the public interest. These presumptions weigh heavily toward denying injunctive relief that would prevent enforcement of the Notice. (See para. 6).
The Federal Court questioned this approach, straying into “impermissible assessment of whether actual harm would be prevented by the Notice and…whether the Notice was actually necessary for the public interest”. (See paras. 7, 9).
For the Court of Appeal, however, the Minister’s description of the legal authorities was accurate: “the decision in Harper leaves little doubt that a validly enacted but challenged law should be presumed to be enacted in the public interest and that this presumption weighs heavily in the balance of convenience.” Furthermore, these principles “apply equally to orders like the one issued in the present case”. (See para. 7; Canada (Attorney General) v. Responsible Plastic Use Coalition, 2024 FCA 18 at paras. 18-20; Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency), 2025 FCA 164 at para. 50).
The Court of Appeal concluded that the Federal Court erred by “understating the effect of the Order on the public interest” and failing to treat the Notice as “presumed to be in the public interest”. (See paras. 12, 16).
In future, it would appear that courts ought not to focus on whether a particular incident would or would not have been averted by the Minister’s Notice of Restriction. Rather, greater emphasis should be placed on the “systemic risk addressed by the Notice” and the “public interest in maintaining the regulatory scheme pending judicial review”. (See para. 11).
In the circumstances here, the Court of Appeal undertook its own assessment and concluded that without evidence to overcome the presumption that the Notice is in the public interest, and noting that the public interest could be “profoundly affected” in the event of a collision, the balance of convenience favours not issuing an interlocutory injunction. (See para. 16).
Counsel for the Appellant: Bernard Assan and Hannah Shaikh (Department of Justice, Toronto)
Counsel for the Respondent: Daniel Goudge and Sarah Fooks (Stockwoods, Toronto)