Baudisch v. Civil Aviation Tribunal, docket T-1360-96

     T-1360-96

Between:

     NORMAN ALBERT BAUDISCH,

     Applicant,

     - and -

     THE CIVIL AVIATION TRIBUNAL,

     Respondent.

     REASONS FOR ORDER

Muldoon, J.

     This is an application, brought by an amended originating notice of motion on July 7, 1996, for

1.      An order in the nature of mandamus requiring the Civil Aviation Tribunal to render a determination on the application for relief placed before it by Norman Albert Baudisch dated February 28, 1996 and,

2.      An order that restrains Faye H. Smith from any involvement in this matter and,

3.      An order that the Civil Aviation Tribunal refer any question or issue of law, of jurisdiction or of practice and procedure it may have with regards to rendering a determination on the application for relief of Norman Albert Baudisch, to the Federal Court Trial Division for hearing and determination.

     This application for judicial review pertains to the decision of the Minister of Transport (per a Mr. Norman Muffitt) on December 10, 1992 to suspend the applicant's Airline Transport Licence for three days for a violation of subsection 540.2(6) of the Air Regulations, C.R.C. 1978, Chap. 2. In that decision, the Minister determined that the applicant flew a Beechcraft 76, C-GBXV, which was not approved for flight in icing conditions, into known icing conditions on February 8, 1992. The application before the Court is not for judicial review of the decision itself, but arises out of circumstances surrounding the decision.

     At the time of the incident, Mr. Baudisch was a flight instructor at the Edmonton Flying Club. On February 8, 1992, he took a student, Mr. Mike Tomm (also an instructor), on a training flight (transcript: pp. 2-3). The aircraft was the Beechcraft 76 C-GBXV. On November 9, 1992, Mr. Baudisch received a letter from Transport Canada which alleged that he, as commandant of a Beechcraft 58, C-GXJW, flew into known icing conditions on February 8 of that year. The letter advised that he was not obligated to assist the investigation (applicant's record: hereinafter AR), p. 41; transcript, p. 4). In discussions with the investigator, Mr. Baudisch thrice denied flying Beechcraft 58 C-GXJW on that date (transcript: p. 5). He had flown the Beechcraft 58 on February 5 and February 13, 1992 (transcript: p. 5). In fact, the Beechcraft 58 was equipped with de-icing boots and was approved for flying in icy conditions (transcript: p. 8). Had the applicant just said nothing, how could a case have been made against him? It was not until the December 10, 1992 notice of suspension, that the right aircraft, the Beechcraft 76, was correctly identified (AR, p. 18).

     The applicant was granted a stay of suspension pending a Civil Aviation Tribunal review hearing. He received a disclosure package from Transport Canada (transcript: p. 6). On April 5, 1993, he demanded full disclosure because he did not know who was going to be called by the Minister of Transport as witnesses or any of the information which the Minister received from these people. The tribunal decision, dated April 21, 1993, was not in the applicant's favour. Mr. Baudisch's preliminary motion for full disclosure was dismissed (transcript: p. 10). He appealed the decision to uphold the suspension to an appeal panel.

     At the appeal hearing on September 3, 1993, Mr. Baudisch objected that the Minister had not given him adequate disclosure of witnesses. The case presenting officer for the Minister was Ms. Faye Smith. In its decision of October 5, 1993, the appeal panel ordered a new review hearing and that the Minister provide complete disclosure of the case against Mr. Baudisch (AR, p. 6).

     The Minister sent two letters to Mr. Baudisch on October 22, 1993. Both were statements made by two witnesses, Mr. Tomm (the student) and Mr. Orville Hewitt, the applicant's boss (and the person who made the complaint some eight months after the incident: AR, pp. 37 and 103; transcript: p. 18). A pre-hearing teleconference for the second review hearing was held on November 3, 1993 and involved tribunal member R.J. MacPherson, the applicant and Ms. Faye Smith, the Manager of the Appeals Division, Regulatory Compliance, Transport Canada. The teleconference report reveals that Ms. Smith assured both the applicant and the member that "Transport Canada has sent Mr. Baudisch all information relating to this matter, receipt of which is acknowledged by Mr. Baudisch." (AR, p. 30). A second review hearing was held November 18, 1993 and the tribunal again upheld the suspension (AR, pp. 86-89). Mr. Baudisch appealed that decision to the appeal panel, as was his right.

     The appeal panel dismissed the appeal on March 10, 1994. Ground 7 of Mr. Baudisch's appeal was that there were still some documents in the Minister's possession which were not provided to him. In particular, he wanted the document sent from Regulatory Compliance Inspector Gillespie to the Regional Director of Regulatory Compliance which recommended that the applicant be charged. In the decision, vice-chairperson Mr. Bruce Pultz wrote (at AR, pp. 95A-96):

Mr. Baudisch still believes there may be some documents, useful to his defence, which the Minister has not provided to him. He was particularly interested in seeing the documents sent from Mr. Gillespie to the regional Director of Regulatory Compliance recommending that a charge be laid.

Ms. Ellard said that the Minister of Transport completely endorses the concept of full disclosure and gave assurance to the Tribunal and to Mr. Baudisch that all relevant information has been provided. However, she further said that the Minister was not prepared, as part of disclosure, to provide internal documents involving policy or the administration of the enforcement program or such things as a memo from the investigator to his supervisor. The Tribunal accepts that, for this hearing, adequate disclosure was provided to Mr. Baudisch to prepare a proper defence to answer the allegations against him.

     After the appeal panel decision, Mr. Baudisch, through his Member of Parliament, twice attempted to obtain Mr. Gillespie's report, which was forwarded to the Regional Director of Regulatory Compliance on or about December 15, 1992 (AR, pp. 100 and 101). The Honourable Douglas Young, Minister of Transport, replied to Werner Schimdt, M.P. on November 1, 1994. The Minister indicated that "in keeping with the provisions of the Privacy Act, the Access to Information and Privacy section of my department has authorized officials . . . to provide Mr. Baudisch with a copy of the document he desires." (AR, p. 102).

     After visiting Transport Canada's office in Edmonton in mid-December 1994, Mr. Baudisch received the document he sought, the "Comprehensive Investigation Report "(hereinafter CIR) (AR, pp. 37-40; 103-106). The report named one witness, Mr. John Riswold, whose existence had not been disclosed to Mr. Baudisch. Further, Mr. Norman Muffitt, Director of Transport Canada Compliance, wrote (under "Adjudication": AR, p. 106):

Under normal conditions a letter of Counselling would be sufficient, however, in this instance the accused refuses to admit guilt and wishes to contest the allegation. In view of the foregoing, in an effort to support the investigator's allegation that an offense took place and also allow the accused to present his argument before the Tribunal I adjudicate a 3 day suspension.

     On January 12, 1996, Mr. Baudisch telephoned the tribunal. During the course of his discussion with Ms. Faye Smith (who had, in the intervening period, been appointed chairperson of the tribunal), the applicant was advised to forward the information he had which showed that "Transport Canada had not provided full disclosure as it was required to and had mislead the Tribunal." (AR, p. 13). Mr. Baudisch faxed the document to Ms. Smith on January 13, 1996, along with a letter requesting the tribunal to act on his allegations that the Minister had acted improperly (AR, pp. 32-34).

     The tribunal's counsel responded by letter on January 29, 1996 (AR, p. 43). The letter stated that the tribunal was advised that it had no authority or jurisdiction to respond to the applicant's request, primarily because it was functus officio. The letter also advised that Mr. Baudisch could apply to have the notation of the suspension removed from his record in accordance with section 8.3 of the Aeronautics Act, R.S.C. 1985, Chap. A-2.

     On February 28, 1996, the applicant sent a "formal application for relief" to the tribunal under section 10 of the Civil Aviation Tribunal Rules, SOR/86-594 (AR, pp. 49-58). In essence:

This application deals with matters previously before the Tribunal, namely, Norm Baudisch versus The Minister of Transport (tribunal file W-0182-02) but it is not an attempt to reverse, overturn or negate the previous determinations of the Tribunal.

The purpose of this application is to have the Civil Aviation Tribunal expose and acknowledge that the Minister of Transport provided to the Tribunal information that was false and misleading during the course of the hearings the Tribunal conducted into the above matter. This can now be proven by evidence that I uncovered well after my appeal hearing of Feb. 17, 1994 (AR, p. 49).

The reliefs claimed are determinations from the tribunal on various facts which culminate thus: the CIR was not disclosed to Mr. Baudisch until after the second hearing despite the order of the first appeal panel decision, and on two occasions the applicant was told that he and the tribunal (or appeal panel) had all of the relevant documents. Mr. Baudisch alleges that this compromised his second review and appeal panel hearing. The other determinations he requested were whether withholding of the CIR contravened paragraph 7.3(1)(d) of the Aeronautics Act (i.e. that the Minister wilfully obstructed the tribunal's review of the suspension) and whether the Minister contravened subsection 6.9(7) of the Act (AR, p. 54).

     The tribunal's counsel responded by letter of May 7, 1996 (AR, pp. 69-70). The letter again advised that the tribunal had no jurisdiction to make any independent review and in any event was functus. Further, subsection 37(9) of the Aeronautics Act prescribes the tribunal's decision as final and binding on the parties. In response to this refusal Mr. Baudisch filed the originating notice of motion for this file on June 5, 1996. By direction of the Court, he filed an amended notice of motion on July 7, 1996.

     The applicant's position is that the tribunal has the jurisdiction under rule 10 to make the determinations he seeks. As the tribunal itself did not reply to his request for relief under section 10 of the rules, it failed to exercise its jurisdiction and this Court should exercise its discretion by making an order of mandamus to compel the tribunal to consider and make a decision regarding the applicant's request. Mr. Baudisch also submits that Ms. Faye Smith is in a conflict of interest and that this Court should order that she not participate in any further proceedings between himself and the tribunal. Finally, should the Court order mandamus, it should also order that any question of law or procedure should be referred to the Federal Court, Trial Division.

     The determinative issue before the Court is this: does the scope of section 10 of the rules and the Aeronautics Act confer power on the tribunal to decide whether or not to grant the relief requested by the applicant? Only if there exists such jurisdiction should the question of mandamus and any other relief be examined.

     Section 10 reads:

10.(1) An application for any relief or order, other than a request for review under section 6, 9, 7 or 7.1 of the Act or an appeal under section 7.2 or 8.1 of the Act, shall be in writing and filed with the Tribunal unless, in the opinion of the Tribunal, circumstances exist to allow an application to be dealt with in some other manner.

(2) An application shall fully set out the grounds on which it is based and shall specify the relief or order as requested.

(3) Subject to subsection (4), where a party makes an application, the Tribunal shall serve notice of the application on each other party and shall afford each other party a reasonable opportunity to make representations.

(4) The Tribunal may dispose of an application on the basis of the material submitted by each party or, if in its opinion there exist exigent circumstances, on the basis of the material submitted by the applicant only.

(5) The Tribunal, upon considering the material submitted to it, shall render its determination of an application in writing and shall serve on each party a copy of the determination forthwith after the determination has been rendered.

     The relief the applicant asks the tribunal, to render determinations relating to evidence received, is substantive. An examination of the rules reveals that section 10 applies to procedural matters: the manner of proceeding. "Any relief" extends only to procedural matters. The long title reads "Rules Governing the Practice and Procedure in Connection with Matters dealt with by the Civil Aviation Tribunal". Section 4 reads:

4. Where a procedural matter not provided for by the Act or by these Rules arises during the course of any proceeding, the Tribunal may take any action it considers necessary to enable it to settle the matter effectively, completely and fairly.

     The provision in the Aeronautics Act which provides for the creation of the Civil Aviation Tribunal Rules, including section 10, is subsection 33(3). It runs, thus:

(3) The Tribunal may, with the approval of the Governor in Council, make rules not inconsistent with this Act governing the carrying out of the affairs of the Tribunal and the practice and procedure in connection with matters dealt with by it.

This subsection of the Act clearly indicates that the rules are to be of procedural nature. Regulations cannot amend a statute. The classic statement on this was by Chief Justice Duff in the Chemical Reference, [1943] S.C.R. 1">[1943] S.C.R. 1: ". . . every regulation . . . derives its legal force solely from . . . [an] Act of Parliament." (AR, p. 13). That the tribunal makes rules regarding its own procedure is eminently sensible. As for substantive relief, however, only Parliament can grant such jurisdiction. Thus the relief must be related substantively to the Aeronautics Act.

     The tribunal's powers and jurisdiction are found in Part I of the Aeronautics Act. Under subsection 6.9(8) the tribunal members may confirm or substitute their decision for the Minister's decision to suspend or cancel or renew a Canadian aviation document made under section 6.9 of the Act. Where there is an immediate threat to aviation safety under section 7, the tribunal member may confirm the suspension, refer it back or substitute her own decision. There are other powers accorded in cases of suspension or cancellation for medical reasons. Similar powers are found in section 7.7 to 8 of the Act.

     When a tribunal member's decision is appealed to an appeal panel under subsections 6.9(8) or 7(7), the appeal panel may dismiss or allow the appeal and may substitute its decision for the Minister's where the appeal is allowed (subsection 7.2(5) of the Act). If the appeal from the decision of a member is one regarding suspension or cancellation on medical grounds, limited powers are accorded. In the case of an appeal under subsection 7.9(3), the appel panel may dismiss the appeal or allow it and substitute its own decision under subsection 8.1(4) of the Act. It appears that there exists no section in the Act which grants the tribunal the jurisdiction to grant the relief sought.

     One other Act of Parliament the Court must look to, in order to discover whether the tribunal has the requisite jurisdiction, is Part I of the Inquiries Act, R.S.C. 1985, Chap. I-11, because the subsection 37(4) of the Aeronautics Act provides:

4. The commissioners have the power of summoning before them any witnesses, and of requiring them to

(a) give evidence, orally or in writing, and on oath or, if they are persons entitled to affirm in civil matters on solemn affirmation; and

(b) produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to examine.

5. The commissioners have the same power to enforce the attendance of witnesses and to compel them to give evidence as is vested in any court of record in civil cases.

These provisions give a commissioner, ergo a tribunal member, the power to summon witnesses and compel evidence. They do not give the tribunal member any extraordinary remedial power, especially the power to make the determinations the applicant requests.

     The facts and the foregoing analysis also leads the Court to the conclusion that the tribunal is functus officio. In Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, Mr. Justice Sopinka, after finding that functus applies to administrative tribunals, wrote for the majority at p. 862:

Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation. This was the situation in Grillas, supra.

Furthermore, if the tribunal has failed to dispose of an issue which is fairly raised by the proceedings and of which the tribunal is empowered by its enabling statute to dispose, it ought to be allowed to complete its statutory task. If, however, the administrative entity is empowered to dispose of a matter by one or more specified remedies or by alternative remedies, the fact that one is selected does not entitle it to reopen proceeding to make another or further selection. Nor will reserving the right to do so preserve the continuing jurisdiction of the tribunal unless a power to make provisional or interim orders has been conferred on it by statute. See Huneault v. Central Mortgage and Housing Corp, (1981), 41 N.R. 214 (F.C.A.).

Chandler was applied by the Federal Court of Appeal in Vatanabadi v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 492 (F.C.A.). In that case, which dealt with a decision of an immigration adjudicator and a refugee division member, Mr. Justice Hugessen found at p. 503 that:

not only had the tribunal not reached a final decision in respect of the matter before it, but a policy which favours finality of proceedings would require that the tribunal, having only just started its inquiry, be allowed to correct its obvious mistake. Such policy would not be advanced by insisting on a time wasting and quite unnecessary continuation down a path which all concerned knew and admitted was fatally flawed. The tribunal's ultimate decision was only subject to review on a point of law and, since it was manifest that such decision would be wrong in law if the error were not at once corrected, a flexible and pragmatic approach required that such correction be effected forthwith.

According to Hugessen, J.A., a tribunal must complete its statutory mandate before it becomes functus. A similar finding was made in Severud v. Canada (Employment and Immigration Commission), (1991), 127 N.R. 152, in the unemployment insurance context.

     In essence, the tribunal must exhaust its mandate. A tribunal will not have exhausted its mandate, and therefore not be functus, when the enabling statute allows the tribunal to reconsider its decision. There exists no such provision in the Aeronautics Act. In this case the appeal panel apparently completed its statutory duties in its April 21, 1993 decision. In carrying out its designated rôle under the Act, the appeal panel upheld the applicant's suspension and in doing so found that the Minister had made adequate disclosure. Is it shown that either body knew of the CIR, or was tainted by Mr. Muffitt's "adjudication"? All of the determinations which Mr. Baudisch asks this Court to compel flow from the disclosure issue. The tribunal has clearly decided this issue, whether deliberately or in ignorance. The only way to challenge this decision is by way of judicial review of the appeal panel decision per se, which the applicant has undertaken.

     Unfortunately for the applicant, the foregoing analysis shows that the relief he requests is not available because the tribunal does not have the jurisdiction to make the determinations he asks. Its proceedings were subsumed in the proceedings of the appeal panel.

     The Court notes with great displeasure, disgust and alarm the Minister's decision to assess Mr. Baudisch a three-day suspension when a letter of counselling would have been the norm, solely because Mr. Baudisch had the temerity to dispute the Minister's allegation. That was the arrogant and tyrannical sentence passed by Mr. Muffitt in the CIR quoted earlier, above. The aircraft identified in the initial letter of allegation (November 9, 1992) was not the one which Mr. Baudisch flew on the day in question. Mr. Baudisch was entirely correct in refusing to "plead guilty" to flying a Beechcraft 58 on the day in question. The Minister was wrong; so wrong that the charge was amended to describe correctly the aircraft the applicant flew on February 8, 1992 as a Beechcraft 76. Mr. Baudisch was not required to make out the case against himself. In fact, he was advised to that effect in the November 9, 1992 letter. To issue a three-day suspension, with potentially disastrous effects on the applicant's career, just because "the accused refused to admit guilt and wishes to contest the allegation" and "in an effort to support the investigator's allegation that an offense took place" is an egregious abuse of authority. It evinces "lynch law" mentality. Does this mean that whenever a minion of the Crown makes an allegation against a person, even when it is wrong on its face, that the accused should placidly accede to the charge? In a fair administrative system should the director of compliance be making efforts to support the investigator (such that the usual admonition is rejected in favour of a real punishment), because the poor investigator needs support? Perhaps his perspicacity was diluted by the affluxion of time between the alleged infraction and the accusation.

     Unfortunately, this is not the forum where this issue can be addressed. Nor is it appropriate to examine Ms. Smith's participation in the case while chairperson of the tribunal, which itself appears to be very unethical and unfair. Was it fatal? Perhaps the tribunal and the tribunal's appeal panel did not "rubber stamp" the recommended fatuous and abusive adjudication expressed by Mr. Muffitt. That is not before this Court. The question in this application is whether the tribunal had the jurisdiction to grant the relief Mr. Baudisch requested on February 28, 1996. It did not. Because mandamus and the other two grounds of relief rely on the tribunal's jurisdiction, they do not need to be dealt with here. However, if despite this present disposition of this application, the applicant's grievance be continued before the respondent - tribunal, or appeal panel - Ms. Faye H. Smith, the applicant's erstwhile adversary before the tribunal ought not to have any involvement in the matter whether by correspondence, creation of documents or in any adjudicative setting. She will no doubt observe this admonition and no order needs to be made in such speculative circumstances. If an order needs to be made, it will be made upon application to this Court.

     It is not for the Court to give advice in law, but the Court may observe, as do the respondent's solicitors, that other relief might well have been sought by the applicant.

     For the foregoing reasons, the application is dismissed. The applicant's case would have derived benefit from the services of a professional counsel, but, of course, it is his undoubted right to conduct his own case, himself.

    

Judge

Ottawa, Ontario

April 21, 1997