Docket: T-1793-16
Citation:
2017 FC 567
Ottawa, Ontario, June 9, 2017
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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THE ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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BRADLEY FRIESEN
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Respondent
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
Bradley Friesen thought that it would be a good
idea to film a video of a helicopter sliding between skaters playing hockey on
an alpine lake for online publication. The Minister of Transport disagreed and
fined him $1000 for contravening section 602.01 of the Canadian Aviation
Regulations, SOR/ 96-433 [CAR]. A Review Panel of the Transportation Appeal
Tribunal of Canada (TATC) upheld that finding and penalty. An Appeal Panel
reversed the Review Panel’s decision. In this application, the Attorney General
of Canada seeks judicial review of the Appeal Panel’s ruling, under section
18.1 of the Federal Courts Act, RSC, 1985, c F-7.
[2]
For the reasons that follow, the application is
granted.
II.
BACKGROUND
[3]
Mr. Friesen has been a helicopter pilot for
approximately 25 years with up to 3,500 hours of experience. On December 8,
2013, he staged an event to create a YouTube video of a helicopter sliding on
the ice through a group of hockey players on a frozen lake in British Columbia.
In these proceedings, the event was described as a “stunt”
in the sense of an exciting manoeuvre. The stunt was performed with the
assistance of a stunt coordinator and eight skaters, two of whom were
helicopter pilots. Each of the players was an expert skater; some had played
hockey at the semi-professional level. Mr. Friesen was the pilot operating the
helicopter.
[4]
On December 7, 2013, a day before conducting the
stunt, Mr. Friesen flew his helicopter to a nearby lake and measured the ice
thickness at 11 inches. He took precautions before the event such as conducting
a safety briefing for the participants, demonstrating the ice slide and
positioning the hockey players on the ice on either side of a ten-foot gap.
Ultimately, the maneuver was conducted without incident and the video was
posted online. Following the publication of some comments about the stunt, Mr.
Friesen reported the event to Transport Canada officials and explained the
safety precautions that had been taken.
[5]
On January 14, 2014, the Minister of Transport
issued a Notice of Assessment of Monetary Penalty of $1,000 to Mr. Friesen for
contravening section 602.01 of the CAR. The Minister alleged that Mr. Friesen,
as the pilot-in-command, operated the helicopter in such a reckless or
negligent manner as to be likely to endanger the property or life of any person.
[6]
Mr. Friesen applied for a review of that Notice.
He was unsuccessful at the first level of review by the TATC, which upheld the
finding of a contravention and the imposition of the monetary penalty. Mr.
Friesen appealed that determination to a TATC Appeal Panel.
In a decision dated September 20, 2016, the Appeal Panel
found that the Minister had failed to prove that Mr. Friesen violated section
602.01 of the CAR, and cancelled the monetary penalty of $1,000. It is that decision which is the subject of this application by the
Attorney General.
III.
DECISION UNDER REVIEW
A.
TATC Review Determination
[7]
At the initial review stage, the only witness appearing on behalf of the Minister was Ross
Bertram, an investigator for Transport Canada, with 13 years of experience in
the enforcement branch. Mr. Bertram expressed the view that the stunt was a
dangerous operation. He testified that the hockey players could have been hit
by the helicopter or rotor blade, or could have slipped on the ice and been run
over.
[8]
Mr. Friesen had failed to obtain a Special
Flight Operations Certificate (SFOC) prior to conducting the stunt. A person
can request such a certificate if they are planning something that could create
an additional danger or would contravene the CAR. According to Mr. Bertram, the
SFOC application would lead to an exchange of information, and if certain
conditions were met, an exemption from the CAR might be given. Mr. Friesen’s
evidence was that it was impossible for him to obtain an SFOC in the time-frame
available to him. Also, it was his understanding that they were only available
to commercial aircraft operations whereas he was a private operator.
[9]
Mr.
Friesen described the safety precautions that he had undertaken prior to and
while conducting the stunt. In an email from Mr. Friesen to Mr. Bertram, dated
December 10, 2013, he had described the precautions as follows:
(a)
he
measured the ice thickness the day before the stunt was conducted;
(b)
he
confirmed the weight supporting ability of that thickness of ice;
(c)
he
practised sliding on the ice with the helicopter, with 100 to 150 lbs. of the
helicopter’s weight on the ice;
(d)
on
the day of the event, he conducted an initial safety briefing with all
participants;
(e)
he
personally walked the area of the proposed ice slide and confirmed that there
were no ridges or holes in the ice;
(f)
two
of the skaters were themselves commercial helicopter pilots and brought their
hand-held radios to act as coordinators;
(g)
a
detailed safety briefing and walk-through was conducted on-site and positions
for the players established, leaving “a small hole” between them;
(h)
he
then flew the helicopter, slowly descended onto the ice at a speed of 15 knots
and slid toward the hole in the line of skaters;
(i)
he
placed the two helicopter pilots on the rotor side, to the left, to keep the
other players as far from the rotor as possible;
(j)
once
completely past the line of players, he waited an additional two seconds before
lifting into the air and turning; and,
(k)
three
helicopters were on standby in case of an incident and first aid-trained
individuals were present.
[10]
Evidence was also called on Mr. Friesen’s behalf
from several other witnesses. They included one of the hockey players on the
ice during the stunt who testified that he had at no time feared for his safety.
In addition, a former Royal Canadian Air Force pilot with 15,000 hours of
flight experience, including 5,000 hours of helicopter experience, was
qualified as an expert witness. Both he and the on-site stunt coordinator, who
had 21 years of experience in the film industry, gave evidence that there were
no other safety measures that Mr. Friesen could have taken short of not
performing the stunt at all.
[11]
Having reviewed the evidence submitted at the
hearing, the Review Member identified and considered the following three issues
in his analysis:
(1)
Did the
maneuver endanger, or was it likely to endanger, the lives of the participants?
(2)
If the maneuver did endanger or was likely to
endanger the lives of the participants, was Mr. Friesen reckless or negligent,
or both?
(3)
If the
maneuver did endanger or was likely to endanger the lives of the participants,
was the danger mitigated by the due diligence of Mr. Friesen?
[12]
The Member found that the act of sliding the
helicopter through the gap between the hockey players constituted a danger or a
likelihood of danger to them. He gave the expert witness’s evidence diminished
weight primarily because he had based his report solely on what he had been
told by Mr. Friesen and it conflicted somewhat with what was shown in the video.
[13]
Based on his own viewing of the video, the
Member concluded that there was a “very real
possibility” that the players would have been struck by the Helicopter’s
skids, had they not moved out of the way. If not struck, the players would have
been approximately two to three feet from the spinning tail rotor. In the
Member’s view, that was an insufficient distance from the tail rotor for it to
pose no risk at all.
[14]
The Member found that Mr. Friesen was not
reckless due to the precautions he had taken. However, Mr. Friesen was found to
be negligent in that he did not operate his helicopter as a “reasonable and prudent pilot” would have, because he
put the safe outcome of the maneuver in the hands of the hockey players. In
other words, Mr. Friesen, as the pilot-in-command, was not in control because
others had to move out of the way to maintain an adequate margin of safety.
[15]
The Member cited section 8.5 of the Aeronautics
Act, RSC, 1985, c A-2 [Aeronautics Act], to say that a person is
required to exercise all due diligence. The Member found that Mr. Friesen could
have sought relief from the regulations by obtaining an SFOC. The Member also
concluded that Mr. Friesen could have created a wider pre-existing gap between
the players, such that they would not have been required to move in order to
avert a likelihood of danger. The Member concluded that, as a finding of
negligence had been made, the defence of due diligence was not open to Mr.
Friesen.
B.
TATC- Appeal Decision
[16]
The Appeal Panel limited the scope of the appeal
to the following issues: (1) the Review Member’s handling of the expert
evidence; and (2) the issues of standard of care and negligence; and (3) the
defence of due diligence. The panel framed all of these issues as questions of
law attracting the standard of correctness.
[17]
In rendering its decision, the Appeal Panel
first identified the standard of review in the context of a statutory appeal
within an administrative tribunal. Relying on the Federal Court’s decision in Huruglica
v Canada (Citizenship and Immigration), 2014 FC 799, [2014] FCJ No 845 [Huruglica
FC], the Panel noted that the standard to apply in such situations went hand
in hand with the statutory intent found in the enabling legislation. The Panel
further noted that a TATC appeal is a proceeding that allows for a revision of
the Review Member’s determination by an appeal panel that has the same
specialized expertise as the Review Member.
[18]
The Panel concluded that the standard of review
to be applied to the Review Member’s decision was one of reasonableness for
questions of fact, including credibility, and mixed fact and law, and one of correctness
for questions of law.
[19]
With regard to the expert evidence received at
the review stage, the Appeal Panel found that it was uncontroverted. The only
difference between the expert evidence and the evidence presented by the
Minister (i.e. Mr. Bertram’s evidence), the Panel noted, is that Mr. Bertram
was giving opinion evidence but was not qualified as an expert at the review
hearing.
[20]
Citing the Supreme Court’s decision in R v
Molodowic, 2000 SCC 16, [2000] SCJ No 17 [Molodowic], the Appeal Panel
stated that it could be unreasonable to reject expert evidence if there is no
contradictory evidence and the opinion of the expert is not seriously
challenged. As the expert evidence presented on behalf of Mr. Friesen was not
diminished, the Appeal Panel concluded that it was not reasonable for the
Review Member in this instance to reject or give it diminished weight.
[21]
The Appeal Panel found that in the context of
this case, the appropriate standard of care must be that of an experienced
helicopter pilot conducting a specialized maneuver involving people on the
ground as opposed to the standard of a “prudent pilot”.
This had not been addressed by the Minister’s evidence at the review hearing.
Moreover, the Minister made no submissions to establish what standard would be
required where a helicopter pilot is conducting a unique, but not prohibited,
maneuver involving people on the ground.
[22]
The Minister’s witness had identified any number
of things that “could have” occurred during the
helicopter slide sequence. The key question for the panel was whether “could have” equates to “likely
to” as required by section 602.01 of the CAR. Given the uncontroverted
expert evidence that there was no risk of injury, the Appeal Panel concluded
that a finding of “likely to endanger” could not
be made, and decided that the Minister failed to prove this necessary element
of the offence.
[23]
Section 8.5 of the Aeronautics Act,
provides for a defence of due diligence to charges of contraventions of the Act
and regulations. As noted, the Review Member found that Mr. Friesen had failed
to take all reasonable steps to minimize the possible dangers because he could
have applied for an SFOC, or could have required a wider gap between the
skaters prior to beginning the manoeuvre.
[24]
The Appeal Panel disagreed with this finding.
Based on the facts established in the evidence regarding the precautionary
steps taken by Mr. Friesen, and the expert evidence to the effect that the
precautions implemented by Mr. Friesen resulted in a “no
risk” scenario, the Appeal Panel determined that Mr. Friesen did meet
the requirement of due diligence under section 8.5 of the Aeronautics Act.
IV.
RELEVANT LEGISLATION
[25]
The relevant provisions of the Aeronautics
Act, RSC, 1985, c A-2, the Transportation Appeal Tribunal of Canada Act SC
2001, c 29 and the Canadian Aviation Regulations are attached as
a schedule to this decision.
V.
ISSUES
[26]
Having considered the parties’ submissions, I
would frame the issues as follows:
A.
What is the standard of review to be applied by
this Court to the TATC Appeal Panel’s decision
B.
What is the standard of review to be applied by
the TATC Appeal Panel to the Review Member’s decision
i.
Did the TATC Appeal Panel err in its treatment
of the expert evidence?
ii.
Did the TATC Appeal Panel err in extending the
standard of care to that of an “experienced helicopter
pilot conducting a specialized maneuver involving people on the ground”?
VI.
ANALYSIS
A.
What
is the standard of review to be applied by this Court to the TATC Appeal
Panel’s decision?
[27]
The applicant submits that the question of
whether the Appeal Panel chose the proper standard of review is a question of
law that does not engage the Appeal Panel’s specialized expertise in aeronautics
and air safety. Therefore, the standard of review to be applied by this Court
to the Appeal Panel’s decision is correctness: Monsanto Canada Inc v Ontario
(Superintendent of Financial Services), [2004] 3 S.C.R. 152, 2004 SCC 54, at
para 6 [Monsanto]; Billings Family Enterprises Ltd v Canada (Minister
of Transport), 2008 FC 17, [2008] FCJ No 17, at paras 26-27 [Billings].
[28]
The respondent submits that the standard to be
applied by this Court is reasonableness: Gabila v Canada (Minister of
Citizenship and Immigration), 2016 FC 574, [2016] FCJ No 560 at para 19,
citing Huruglica v Canada (Minister of Citizenship and Immigration), 2016
FCA 93, [2016] FCJ No 313 at para 35 [Huruglica FCA].
[29]
Monsanto and Billings
both predate Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCJ No 9 [Dunsmuir]
and Huruglica FCA. In Monsanto, the Supreme Court applied
the pragmatic and functional approach to reach the conclusion that the
appropriate standard of review of a decision by the Ontario Financial Services
Tribunal was correctness.
[30]
Billings involved
multiple findings of contraventions of the CAR in relation to the operation of
helicopters. An appeal panel of the TATC upheld the contravention findings but
reduced the monetary penalties imposed by the Minister. On judicial review and
applying the pragmatic and functional test, Justice Sean Harrington found, at
paragraph 27, that the standard was patent unreasonableness for questions of
fact, reasonableness for mixed questions of fact and law, and that no deference
was owed by this Court to the TATC on questions of law.
[31]
Huruglica FCA arose
in the context of judicial reviews of decisions of the Refugee Appeal Division
under the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. As
stated by Justice Gauthier at paragraph 30, there is now a presumption that reasonableness applies to all questions of law arising from
the interpretation of an administrative body’s home statute: McLean v.
British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Smith
v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; and Canadian
National Railway v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R.
135.
[32]
More recently, a majority of
the Supreme Court of Canada confirmed in Edmonton (City) v Edmonton East
(Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] SCJ No 47 at
paragraph 22 [Edmonton East], that the reviewing court should
begin by considering whether the issue involves the interpretation by an
administrative body of its own statute or statutes closely connected to its
function. If so, the standard of review is presumed to be reasonableness.
[33]
In Dunsmuir, above, at paragraph 57, the
Supreme Court held that an exhaustive analysis is not required in every case to
determine the proper standard of review, as “existing
jurisprudence may be helpful in identifying some of the questions that
generally fall to be determined according to the correctness standard”
[emphasis added].
[34]
In a case post-dating Dunsmuir, Justice
James O’Reilly noted that judicial review of decisions of a TATC appeal panel
is “generally conducted on a reasonable standard”:
Canada (Attorney General) v Annon, 2013 FC 5, [2013] FCJ No 8, at para
13 [Annon]. This was because the appeal panel is regarded as having
expertise in transportation matters and renders its decisions largely on
findings of fact or mixed questions of fact and law. He concluded that the same
should apply to decisions of a single member of the TATC. Justice O’Reilly
singled out issues of jurisdiction, at paragraph 14 of Annon, as
attracting the correctness standard.
[35]
The Supreme Court and Federal Court of Appeal
have warned against expansive interpretations of jurisdiction or of overlapping
jurisdiction: see Huruglica FCA, above, at para 33. No questions of
jurisdiction are at issue in these proceedings.
[36]
The applicant argues that this Court owes no
deference to the TATC Appeal Panel’s decision on the proper standard of review
to be applied, as that is a question of law which does not engage the Appeal
Panel’s specialized expertise in aeronautics and air safety. However, as
mentioned above, relying on Huruglica FCA, the respondent submits that the standard to be applied by this Court to the TATC
Appeal Panel decision is reasonableness.
[37]
The applicant contends that Huruglica FCA
is irrelevant to this judicial review and distinguishable on the ground
that it has no precedential value outside the IRPA scheme. She points to
comments in Huruglica FCA, at paragraphs 31 and 66, where the
Federal Court of Appeal states that “it is not useful
to look at decisions regarding the role of administrative appeal bodies other
than those created under the IRPA” as the language in the
statutes varies. It is the applicant’s position that the language authorizing
the Refugee Appeal Division’s (RAD) powers in sections 67, 110, and 111 of the
IRPA cannot be found in the TATC statutory scheme or its regulations.
[38]
Moreover, the applicant submits that the TATC
Appeal Panel’s expertise is in aeronautics and aviation safety, not necessarily
helicopter safety. In this case, the applicant argues, the Appeal Panel is not
in a better place than the Court to determine what standard of review should be
applied to the Review Panel’s determination. Moreover, this Court has already
determined the standard of review to be correctness in Billings, above,
at paragraphs 26-27.
[39]
Gauthier J.A.’s reasons in Huruglica FCA
focused on the statutory scheme and language used in the IRPA. She agreed
with the Minister’s submission that the Federal Court judge in that case (and
others who had applied the same reasoning) misconstrued the limited exceptions
where the standard of correctness may be applied.
[40]
The applicant relies on the following statement
in paragraph 31 where Justice Gauthier said:
[…] I simply cannot conclude that a question
of law involving the interpretation of an administrative body’s home statute so
as to determine its appellate role has any precedential value outside of the
specific administrative regime in question […].
[41]
However, I note that this followed a broader
statement made in paragraph 30 regarding the “presumption
that reasonableness applies to all questions of law arising from the
interpretation of an administrative body’s home statute”. Further, at
paragraph 32, Gauthier J.A. stated the following:
32 Just as
legal principles applicable to cost awards and to time limitations have been
found to fall within the expertise of the administrative bodies involved in Canada
(Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 43
at para. 25, [2011] 3 S.C.R. 471 and McLean at para. 21, defining the
scope of its appellate function (or its standard of review) must be within the
RAD’s expertise. [Emphasis added]
[42]
The applicant also relies on Monsanto,
above, to argue that where an Appeal Panel chooses the wrong standard of
review, the Court should correct the error. In my view, the applicant’s
reliance on Monsanto is misplaced in light of the FCA’s decision in Huruglica
and the Supreme Court’s decisions in Dunsmuir and subsequent
decisions including, Edmonton East.
[43]
In Monsanto, the only issue in the appeal
before the Supreme Court was whether the Financial Services Tribunal properly
interpreted subsection 70(6) of the Ontario Pension Benefits Act as not
requiring distribution of the actuarial surplus on a partial plan wind-up.
Notably, interpreting subsection 70(6) was a pure question of law which
concerned the establishment of statutory rights. As such, the Supreme Court
deemed it necessary to engage in strict statutory interpretation to determine
the meaning of that provision.
[44]
The present matter can easily be distinguished
from the nature of the issue in Monsanto. The TATC Appeal Panel’s
determination of its appellate role is indeed a question of law, but it is
inextricably linked to an interpretation of its home statute. An administrative
tribunal determines its appellate role by interpreting its home statute and
regulations: Huruglica FCA, above, at para 31. Further, there is a
presumption that deference will usually apply where a tribunal is interpreting
its own statute or statutes closely connected to its function, with which it
will have particular familiarity: Dunsmuir, above, at para 54.
Therefore, this Court owes deference to the TATC Appeal Panel’s determination
of its appellate function.
[45]
At the hearing, the applicant argued that the
kind of language used in sections 67, 110 and 111 of the IRPA does not exist in
the TATC statutory context. According to the applicant, the absence of such
language means that the TATC lacks the powers and authority that the RAD
enjoys.
[46]
A review of the relevant provisions in the IRPA,
the TATC Act, and the Aeronautics Act, suggests that the RAD and the
TATC appeal panel enjoy a similar statutory foundation. For example, a
comparison of the language used in section 110 of the IRPA and section
14 of the TATC Act, demonstrates that both the RAD and the TATC Appeal Panel
are authorized to review the whole record which was before the tribunal below
on the merits. Moreover, the TATC Appeal Panel is empowered to dispose of an
appeal under subsection 8.1(3) of the Aeronautics Act in much the same
manner that the RAD can under section 111 of the IRPA.
[47]
Therefore, I am not persuaded that the Federal
Court of Appeal’s decision in Huruglica is distinguishable due to the
unique statutory provisions of the IRPA. In my view, the reasoning in Huruglica
FCA is applicable to the case at bar, and thus, the proper standard of
review to be applied by this Court to the TATC Appeal Panel’s decision is
reasonableness.
[48]
In the event that I err in that conclusion, I
would add that applying the factors set out by the Supreme Court in Dunsmuir
at paragraph 55 arrives at the same result. Section 21 of the TATC Act
provides that a decision of an appeal panel is final and binding on the parties
to the appeal. As noted in Dunsmuir, at paragraph 52, the existence of a
privative clause “gives rise to a strong indication of
review pursuant to the reasonableness standard” as it is evidence of
Parliament’s intent that an administrative decision maker be given greater
deference and that interference by reviewing courts be minimized.
[49]
While the existence of a privative clause is not
determinative, the other factors also point to the reasonableness standard. The
purpose of the regime underpinning the TATC is to deal with matters pertaining
to aviation security informally and expeditiously: see TATC Act, s.
15(1). The TATC Appeal Panel is regarded as having expertise in transportation
matters and charged with making decisions to protect public safety: Billings,
above, at para 27; Annon, above, at para 13. Deference is presumed
where an administrative tribunal has developed particular expertise in the
application of rules in relation to a specific statutory context: Dunsmuir, above,
at para 54.
[50]
While the underlying issue regarding the TATC
Appeal Panel’s determination of the appropriate standard of review is a
question of law, this does not automatically result in an application of the
correctness standard. The Supreme Court in Dunsmuir, at paragraph 55,
stated that the nature of the question of law must also be examined. The
question of law at issue is neither of central importance to the legal system
nor does it fall outside the specialized area of expertise of the TATC Appeal Panel.
A question of law that does not rise to this level may be compatible with a
reasonableness standard where the two other factors also indicate a
reasonableness review: Dunsmuir, above, at para 55.
[51]
Considering the privative clause, the nature of
the regime as set out by the TATC Act and the Aeronautics Act, and the
nature of the question of law at issue here, I conclude that the appropriate
standard to be applied by this Court to the TATC Appeal Panel’s decision is
reasonableness.
B. What is the standard of review to be applied by the TATC Appeal Panel
to the Review Member’s determination?
[52]
The TATC Appeal Panel found that questions of
credibility, fact and mixed fact and law attract a reasonableness standard,
while questions of law attract a correctness standard: Huruglica FCA,
above; Farm Air Ltd v Canada (Minister of Transport), 2011 TATCE 20; Canada
(Minister of Transport) v NAV Canada, 2010 TATCE 28 (Appeal) at para 11; Canada
(Minister of Transport) v Air Saguenay (1980) Inc., 2015 TATCE 13 (Appeal)
at paras 8-11; Annon, above, at para 16.
[53]
The applicant does not take issue with the
Appeal Panel’s conclusion that a question of law, which is on appeal before the
TATC, is to be reviewed on a correctness standard. Instead, the applicant
submits that the Appeal Panel erred in its characterization of the matters
before it as questions of law. According to the applicant, all of the issues
before the Appeal Panel involved questions of mixed fact and law subject to the
standard of review of reasonableness.
[54]
The respondent submits that the appeal panel
applied the correct standard as mandated by Huruglica FCA, above.
Further, the respondent relies on the Supreme Court’s decision in Housen v
Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 [Housen], at paragraph 27,
to argue that it is an error of law to apply an incorrect principle of law.
Moreover, the respondent submits, “what appears to be a
question of mixed fact and law, upon further reflection, can actually be an
error of pure law”: Housen, above, at para 27.
[55]
The respondent further argues that it was open
to the appeal panel to extricate a question of pure law from an issue of mixed
fact and law: Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53,
[2014] 2 S.C.R. 633 at para 53 [Sattva].
[56]
The Appeal Panel found errors of law regarding
(1) proof of the relevant standard of care and whether there was any evidence
of a breach of that standard, (2) the rules of law applicable to expert
evidence, and (3) the required test for due diligence. The respondent submits
that whether these issues constituted pure errors of law, or errors of law
extricated from what might be initially characterized as an error of mixed fact
and law is a matter for determination by the Appeal Panel, which is owed
deference by this Court on judicial review.
[57]
I find that the Appeal Panel erred in characterizing
the Review Member’s handling of the expert evidence as a question of law
subject to the standard of review of correctness. In giving the expert evidence
diminished weight, the Review Member had taken into consideration the factual
foundation underpinning that evidence. As such, the treatment of the expert
evidence was a question of mixed fact and law which should have been reviewed
by the Appeal Panel on a reasonableness standard. I note that there is language
in the Panel’s analysis that indicates that it may have actually applied the
appropriate standard. At paragraph 59, the Appeal Panel found that “it was unreasonable for the review member to reject or give
diminished weight to the opinion evidence of Mr. Swallow”.
[58]
However, the Appeal Panel did not err in
characterizing the standard of care and defence of due diligence issues as
questions of law. It properly applied the standard of correctness to the
questions of law it identified on those issues as provided by the established
jurisprudence.
(i) Did the
TATC appeal panel err in its treatment of the expert evidence?
[59]
The Appeal Panel found that it was unreasonable
for the Review Member to reject or give diminished weight to the expert
evidence since there was no contradictory evidence and the opinion of the
expert was not seriously challenged: R v Molodowic, 2000 SCC 16, [2000]
1 SCR 420 [Molodowic]. In doing so, the Appeal Panel noted that so long
as there is some admissible evidence to establish the foundation of an expert’s
opinion, the opinion evidence is admissible. Citing R v Abbey, [1982] 2
SCR 24, the Appeal Panel stated that any failure to prove parts of the factual
foundation of an opinion would go to the weight to be given that opinion.
[60]
The applicant contends that the Review Member provided
clear and cogent reasons for giving reduced weight to the expert’s opinion. For
instance, the Review Member found the expert’s conclusion that the stunt posed
no risk at all to be overstated, because that conclusion was not supported by a
screen shot from the video. It is the sole
purview of the trier of fact to determine the weight to be given to expert
evidence. That assessment is owed deference on appellate review, especially where the Review Member and Appeal Panel have the same
level of specialized expertise with respect to aviation safety. Ultimately, it is for the trier of fact alone to reach a conclusion
on the ultimate issue based on the totality of the evidence: R v Sekhon, 2014
SCC 15, [2014] SCJ No 15 at paras 45-48 [Sekhon], citing R v Mohan, [1994]
2 SCR 9 [Mohan].
[61]
In the respondent’s view, the Review
Member erred in law by substituting his own opinion for
that of a qualified expert: R v Lavallee, [1990] 1 S.C.R. 852 (QL) [Lavallee]
at para 74. Moreover, the respondent argues, an expert is permitted to base his
opinion on the facts in evidence without conducting his own investigation:
Sopinka and Lederman, The Law of Evidence in Canada at para 12.34.
[62]
In Molodowic, above, at paragraph
8, the Supreme Court held that, as a general principle, a jury may reject the
opinion of experts, even when the experts called are unanimous and
uncontradicted by other experts. However, the Court noted, there has to be a
rational foundation in the evidence for the jury to reasonably reject the
opinion of the experts.
[63]
It was, therefore, open to the Appeal Panel in
the present matter to assess the foundation upon which the Review Member
rejected the expert evidence. However, the Appeal Panel found that the Review
Member erred because the expert’s report was not refuted by any evidence
presented by the Minister. In doing so, it appears to have provided significant
weight to the expert evidence because it found that (1) the facts relied on by
the expert were proven in evidence, (2) the expert’s evidence was
uncontroverted, and (3) the expert’s evidence was not seriously challenged.
[64]
The Appeal Panel focused on the expert’s
evidence with respect to the finding of “no risk”
and Mr. Friesen’s actions to mitigate the risk. The Appeal Panel noted that the
Review Member’s assessment of the ultimate issue of safety and conclusion on
the finding of “no risk” was too narrow. In
reaching this conclusion, it appears that the Appeal Panel accepted the opinion
evidence of the expert on the ultimate issue of “risk”
and took issue with the Review Member’s own or different assessment of the
video evidence presented during the hearing.
[65]
At one time, opinion evidence that went directly
to the ultimate issue would be excluded on that ground alone. That is no longer
the case: R v D.R., [1996] 2 S.C.R. 291 at paras 38-39 (QL). However, the
closer the evidence approaches the ultimate issue, the closer must be the
scrutiny to which it is subjected: R v J.-L.J., 2000 SCC 51, [2000] SCJ
No 52 at para 37. It was not unreasonable for the Review Member; an individual
specialized in the matters of aeronautics and transportation safety, to subject
the expert evidence to closer scrutiny, especially in relation to the ultimate
finding of “risk” to safety. Therefore, I
conclude that the appeal panel erred in its treatment of the expert evidence.
(ii) Did
the TATC appeal panel err in extending the standard of care to that of an “experienced helicopter pilot conducting a
specialized maneuver involving people on the ground”?
[66]
The applicant submits that the issues of whether
Mr. Friesen met the standard of care and whether he exercised due diligence are
entwined. Both issues require an assessment of the reasonableness of Mr.
Friesen’s actions in all the circumstances of the case.
[67]
In particular, the applicant argues, the Review
Member’s determination that Mr. Friesen was negligent was owed deference; he had,
the Member found, ceded an unacceptable level of control over the situation by
engaging in a stunt that required other people to get out of his way in order
for a margin of safety to be maintained. In addition, the Member found, Mr.
Friesen had failed to exercise due diligence by applying for an SFOC, through
which he could have obtained the benefit of Transport Canada’s expertise and
guidance regarding the safety issues inherent in the helicopter stunt.
[68]
The respondent submits that the Review Member
applied the wrong standard of proof of negligence under the CAR, as he made a
finding of contravention on the basis of a “possibility”
of endangerment. Section 602.01 of the CAR provides that “[n]o person shall operate an aircraft in such a reckless or
negligent manner as to endanger or be likely to endanger the life or property
of any person”. This requires, the respondent argues, either actual
endangerment or a likelihood of danger.
[69]
Moreover, the respondent contends, the Review
Member erred in law in finding that the Minister established negligence without
tendering any evidence of the requisite standard of care to be met by a
helicopter pilot. The respondent argues that the Review Member applied the “reasonable man on the street” standard, rather than
the standard for negligence applicable to a skilled helicopter pilot.
[70]
The respondent relies on a line of authority in
the British Columbia courts for the proposition that proof of the requisite
standard of care is required in circumstances involving a specialized skill and
knowledge: Qureshi v Nickerson, [1988] BCJ No 1659 at 2 [Qureshi];
Gadsby v MacGillivray, [1997] BCJ No 1564 at para 96.
[71]
This line of authority stems from a decision of
the Queen’s Bench Division of the High Court of England and Wales which laid
down what is known as the Bolam test: Bolam v Friern Hospital
Management Committee [1957] 2 All ER 118 [Bolam]. This statement
from Bolam was adopted by the British Columbia Supreme Court in Qureshi,
above, at page 2 and in Gadsby, above, at para 96:
But where you get a situation which involves
the use of some special skill or competence then the test whether there has
been negligence or not is not the test of the man on the top of a clapham
omnibus because he has not got this special skill. The test is the standard of
the ordinary skilled man exercising and professing to have that special skill.
[72]
At paragraph 62 of its reasons, the Appeal Panel
relied on the Bolam test in arriving at the conclusion that a
specialized, as opposed to a general standard, is required when reviewing
conduct involving specialized skills. However, the Panel failed to explain why
the standard of a “prudent pilot” is a general
standard and not a specialized standard. The standard of a “prudent pilot” recognizes a special skill beyond the
general standard of the“reasonable man” or “the man on the top of a Clapham omnibus” as discussed
in Bolam.
[73]
There is no doubt that Mr. Friesen is an
experienced helicopter pilot. Mr. Friesen has been a helicopter pilot for
approximately 25 years with up to 3,500 hours of flying experience. It is also
clear that he took extensive safety precautions before performing the stunt.
However, there was no evidence to support the proposition that Mr. Friesen has
a special skill or competence in executing maneuvers or stunts, such as the one
in this case.
[74]
The TATC Appeal Panel erred, in the particular
circumstances of this case, in concluding that the appropriate standard of care
was that of an experienced helicopter pilot conducting a specialized maneuver
involving people on the ground as opposed to the standard of a “prudent pilot”. The Panel reached this conclusion in
the absence of any evidence establishing that Mr. Friesen was experienced in
conducting a specialized maneuver involving people on the ground.
[75]
In the absence of any evidence to establish a
specialized standard beyond that of a “prudent pilot”
applicable to these circumstances, the Appeal Panel’s conclusion on the standard
of care is not reasonable.
[76]
My finding on either the standard of care or
expert evidence issue is determinative. I do not find it necessary to consider
the Appeal Panel’s treatment of the defence of due diligence issue as it is
entwined with these two issues. The Panel accepted that Mr. Friesen exercised
due diligence because of the evidence that the steps he took resulted in a “no risk” scenario. In my view that conclusion should
be revisited once the two key errors I have found are addressed.
[77]
I would, therefore, grant the application and
remit the matter to the TATC for reconsideration by a different Appeal Panel.
The applicant shall have her costs in accordance with the normal tariff.
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