Date: 20070427
Docket: T-122-06
Citation: 2007 FC 451
Ottawa, Ontario, April 27,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
ALVIN
BANCARZ
Applicant
and
MINISTER
OF TRANSPORT
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. OVERVIEW
[1]
The
Minister of Transport refused to grant the Applicant’s application for renewal
of his Aircraft Maintenance Engineer (AME) licence. The Minister originally
refused to renew on the grounds of incompetence and that it was not in the
public interest to renew the licence.
[2]
An
AME is a trained and licensed person who issues a “maintenance release” after
maintenance or repair work is performed, certifying that the work has been
performed correctly and in accordance with applicable regulations. An AME
attests both as to the work performed and the safety of the aircraft. No
aircraft may be operated unless it is certified as safe in accordance with the
regulations.
[3]
On
appeal to the Transportation Appeals Tribunal of Canada (TATC/Tribunal), the
Tribunal disagreed with the Minister’s conclusion and referred the matter back
to the Minister for reconsideration.
[4]
The
reconsideration was conducted by a panel of three (3) officials within the same
department and their recommendation upholding the Minister’s original decision
was adopted by the Minister’s delegate on the grounds of public interest.
[5]
This
is the judicial review of the Minister’s decision through his delegate to uphold
the Minister’s first decision not to renew the AME licence.
II. BACKGROUND
[6]
The
Applicant began working in the aircraft industry in 1987 in the area of
aircraft repairs. He was issued an AME licence on December 18, 1998.
[7]
Between
1997 and 1998, the company for which he worked committed aeronautics
infractions for which it was assessed penalties under the Canadian Aviation
Regulations (CARs).
[8]
Subsequently
the Applicant was alleged to have committed a number of infractions. His
failure to properly calculate the weight and balance of an aircraft after
repairs and new installations resulted in a two-day suspension. The aircraft’s
weight and balance is the baseline from which safe loads to be carried are
calculated.
[9]
Between
2002 and 2004 another company in which he held an interest, Altima Aero Industries,
had its AMO authority twice suspended and ultimately cancelled. An AMO
(Approved Maintenance Organization) is an organization approved by Transport Canada to maintain
aircraft and parts. An AMO is the umbrella under which an AME often works and
it consists of both the AMEs and management. As an organization
responsible for maintenance on commercial aircraft and specialized work, it
holds its own licence.
[10]
On
May 22, 2004, the Applicant’s AME licence expired. He applied for its renewal
on August 20, 2004 and the Minister refused to renew the licence on September
6, 2004.
[11]
In
this first decision (Renewal Decision), the Minister refused to renew the AME
licence because (1) the Applicant was adjudged to be incompetent, and (2) it
was not in the public interest to renew the licence.
[12]
On
the issue of incompetence, the Minister held that Bancarz had repeatedly
demonstrated that he was not committed to complying with the CARs and standard
practices. There was a pattern of non-compliance, misleading records and
failures to meet minimum standards for safety. The Minister listed several
examples of such behaviour including improper welding, failure to properly
record weight and balance changes, incomplete/incorrect documentation and
improper maintenance.
[13]
On
the issue of public interest, the Minister cited the same incidents as cited in
respect of incompetence as well as several other incidents where the Applicant
failed to record information in the technical log. Because maintenance records
and sign-offs (maintenance releases) by AMEs are so critical to the history of
an aircraft and confidence in the aircraft’s safety, Bancarz’s record of
signing releases when standards had not been met justified a conclusion that it
was not in the public interest to renew his AME licence despite his technical
competence.
[14]
Bancarz
appealed the Minister’s decision to the TATC which conducted a hearing at which
12 witnesses gave testimony and Bancarz made representations.
[15]
The
TATC is a quasi-judicial tribunal composed of full-time and part-time members
who have jurisdiction in respect of reviews and appeals made under federal
jurisdiction governing air, rail and marine matters; generally of a safety or
technical nature. The Tribunal collectively through the qualifications for
appointment of its members by the Governor-in-Council has expertise in respect
of matters over which it has jurisdiction.
[16]
While
the Tribunal’s process is adversarial and court-like, it is not bound by strict
rules of evidence. It is required to provide reasons for its decisions. As a
general rule, the Tribunal can either dismiss an appeal or refer the matter to
the Minister for reconsideration.
[17]
In
this case the single member panel, consisting of the Chair of TATC, held that
the Minister had not proved that Bancarz was incompetent because the Minister
could not substantiate all of the alleged grounds against him. The Chair also
held that in respect of the public interest, the Minister had failed to
establish that Bancarz’s maintenance releases were unreliable or that Bancarz had
demonstrated a record and pattern of unreliability.
[18]
The
TATC was particularly mindful that in other cases of a similar nature where
there were unsubstantiated statements, incomplete explanations and sweeping
statements in the Minister’s case, the Minister’s finding of incompetence was
cushioned by the imposition of conditions for reinstatement of the licence. In
Bancarz’s situation there are no conditions for reinstatement, a circumstance
which provided little hope of him ever regaining his AME licence. The result is
that the Minister’s decision is equal to the cancellation, not suspension, of
his AME licence.
[19]
The
TATC recognized that not all work done by Bancarz was according to
airworthiness standards; however, because of the history of mitigations and
settlements accepted by Transport Canada, Transport Canada had failed
to communicate its view of the gravity of the infractions until it refused to
renew the AME licence. The Tribunal found that some evidence exonerated Bancarz
in respect of some allegations and other evidence should not have been given
such weight as to deprive Bancarz of ever acquiring an AME licence. The
Tribunal concluded:
I am not convinced that the Minister has
proved on a balance of probabilities that Mr. Bancarz, by reason of
incompetence or because his record in relation to aviation justifies it, is to
be refused reissue of his AME licence. … The matter is referred back to the
Minister for reconsideration of the decision to refuse to issue Mr. Bancarz’s
AME licence.
[20]
There
is no legislated procedure for such a reconsideration. However, the Minister
has a policy established in Civil Aviation Directive No. 34 (CAD 34). Pursuant
to CAD 34 three “experts” were appointed to review the case and make a
recommendation to the Minister’s delegate. The “experts” were not independent
experts but senior officials in the aeronautics branch of Transport Canada.
[21]
The
Minister’s delegate, on December 23, 2005, advised the Applicant that this
three-person panel had convened to review the case. Further, the Minister’s
delegate advised Bancarz that having examined the TATC’s review decision and
having examined the review panel’s deliberations/recommendation:
… it is my determination that the
Minister’s decision to refuse to issue an Aircraft Maintenance Engineer (AME) Licence
should be upheld pursuant to paragraph 6.71(1)(c) of the Aeronautics Act
(on the grounds of public interest).
[22]
Attached
to the Minister’s delegate’s letter of December 23, 2005 was the review panel’s
report. The panel concluded that the six (6) examples in the TATC review used
in respect of both “Public Interest” and “Incompetence” were the same. The
panel concluded that for ease of reference the six examples would be referred
to under the “Public Interest” provision.
[23]
The
panel noted that the TATC had concluded that because Transport Canada had accepted
reduced penalties, it indicated that the Minister did not consider the
occurrences or infractions were of any consequence. The panel disagreed with
that conclusion. As to other conflicts between the TATC and the panel’s conclusions,
the panel speculated that it was because the evidence had not been presented at
the TATC hearing in as clear or concise a manner as would be required.
[24]
It
was the panel’s view that its review was based on more comprehensive evidence
than was before the TATC and that the panel conducted a more detailed analysis.
The panel’s reconsideration did not include as part of its procedures the
receipt of oral evidence and cross-examination as did the TATC’s process. The
panel took into account more incidents than those which were before the TATC.
[25]
The
Applicant’s evidence was that the TATC informed him that the Minister’s
reconsideration would in essence be a “rubber stamp” given the conclusions of
the Tribunal. His evidence was also that early in the process an official
contacted him about whether he had anything to add to the process. His response
was basically that given the TATC’s result, he had nothing to respond to and
that he could not afford counsel in any event. Whatever the circumstances, the
Applicant had no involvement in the reconsideration process.
III. ISSUES
[26]
The
Applicant has framed the issues in the following order:
·
was
there a breach of procedural fairness?
·
was
there a reasonable apprehension of bias?
·
was
there sufficient evidence to conclude that it was in the public interest not to
renew the Applicant’s licence?
·
is
the Applicant entitled to mandamus?
IV. ANALYSIS
A. Standard
of Review
[27]
The
Respondent says that applying a pragmatic and functional analysis of the
Minister’s decision, the standard of review is patent unreasonableness. This is
based on the following:
·
the
statute is silent in respect of review, a neutral factor;
·
the
panel is replete with expertise indicating that considerable deference is owed;
·
the
purpose of the statute is the protection of the public and aviation safety
indicating more deference; and
·
the
question is fact-based and discretionary in nature, again indicating more
deference.
[28]
In
general terms, the Court agrees with this analysis; however, the standard of
review depends on which question is being posed. The standard of review for
fairness and bias is correctness. As some of the factual issues are dependent
on industry and regulatory expertise (e.g. what is the level of inspection
of a dent on a wing), those matters are clearly ones for considerable
deference.
[29]
This
case, in respect of the facts and conclusions therefrom, is complicated by the
fact that a body with expertise, TATC, whose role is to review Transport
Canada’s actions, reached different conclusions on the same facts (and would on
factual determination be entitled to a standard of patent unreasonableness if
the matter was before this Court) and concluded that the Minister’s decision
was in error. The standard of review in respect of those aspects of disagreement
between the panel and the TATC should be resolved on a consideration of whether
the panel has shown that its opposing decision to that of TATC is reasonable in
this context.
[30]
This
application can be determined on the grounds of procedural fairness and the
right to be heard.
B. Procedural
Fairness
[31]
The
Applicant complains that he was misled by the TATC that the reconsideration
would be a “rubber stamp”. Firstly, a reconsideration is not an automatic
adoption of the TATC’s decision although one could expect that it would require
significant circumstances to depart from the findings of an independent expert
tribunal. Secondly, the TATC cannot speak for the Minister who has the ultimate
authority in respect of the issuance of the type of licence at issue.
[32]
The
central flaw in the reconsideration process is that the Applicant never had a
meaningful opportunity to address the findings of the review panel before the
Minister’s delegate accepted the panel’s recommendation. In this regard this
case is similar to this Court’s decision in Sierra Fox Inc. v. Canada (Minister of
Transport),
2007 FC 129.
[33]
It
is no answer, as suggested by the Respondent, that the Applicant had an
opportunity to participate in the review process when he was contacted by
Transport Canada to determine
if he had anything he wished to submit. At that time the Applicant had been
successful before the TATC and it is hardly surprising that he had nothing to
add at that time.
[34]
The
review panel then went on with its task, expanded the scope of the inquiry and
then largely dismissed TATC’s conclusions without any further notice to the
Applicant. The Applicant had a legitimate expectation that the review would be
a reconsideration of the matters before the TATC, not a new inquiry.
[35]
It
is also no answer to the Applicant’s position to say that since the panel’s
recommendations constitute the reasons for decision (because they were accepted
by the Minister), therefore the Applicant has no right to comment on “reasons”
before they are issued. The panel’s recommendations become “reasons” by default
of any other reasons expressed by the Minister and are a presumption that the
Minister adopts the reasoning in the panel’s recommendation. The Applicant had
a right to be heard before the panel’s recommendations went to the Minister.
The Minister has no answer to the issue of how the Applicant was to respond to
the panel’s recommendations including new matters not put to the Tribunal or
referred to in the Renewal Decision.
[36]
The
panel’s attempt to downplay the importance of an AME licence and therefore the
effect of the decision on the Applicant is misplaced. The panel suggests that
Bancarz can still work in the aviation industry but merely cannot sign-off on
work. In oral submissions the Respondent repeated this challenge to the impact
on Bancarz. The Respondent’s position is inconsistent with the importance to
safety and the public interest on which it relies to support the Minister’s
decision. If the AME licence was such a minor issue, it seems that Transport
Canada went to extraordinary lengths to deal with such an insignificant
difference between a person who can work on aircraft and a person who can
sign-off that work.
[37]
The
reality is that an AME licence is important to the aviation system and to the
individual licence holder. Its importance underscores the need for regulation
and enforcement as well as the need for fair and proper consideration when the
licence is to be taken away; either directly by suspension/cancellation or by
failure to renew for serious grounds which has the effect of permanently depriving
an individual of a previously held authorization.
[38]
The
Respondent owed the Applicant a high degree of procedural fairness which it
failed to accord.
C. Bias
[39]
The
Applicant argues that there is bias (reasonably apprehended or actual) by
virtue of composition of the panel members. All of the members are senior
aviation officials in the very branch of government which made the decision not
to renew.
[40]
However,
the reconsideration ordered is to be performed by the Minister. It is
appropriate for that decision to be made by a delegate based upon inquiry by
other experts. These experts do not necessarily have to be from outside
government.
[41]
However,
having adopted this procedure and to avoid the appearance of bias, the panel
and the Minister must give credence and deference to the TATC’s findings. It is
not sufficient for a review panel to merely disagree with the TATC’s
conclusions or the weight given to evidence by the TATC. To permit that type of
conduct by such a panel would be to disregard the intent of Parliament in
creating the TATC as an independent check on government decisions in the field
of transportation licensing.
[42]
A
reconsideration is not a “rubber stamp” of the Minister’s original decision nor
is it a licence for the Minister or his officials to proceed to find other
grounds and circumstances upon which to support the original decision. It is to
be a reconsideration of the matters upon which the Minister made the initial
decision and upon the evidence before and the conclusions reached by the TATC.
It does not permit the Minister’s officials to graze through the Applicant’s
history in an attempt to justify, ex post facto, the initial
decision.
[43]
While
there may not have been bias, the Minister’s review process was seriously
flawed in respect of fairness and cannot be supported.
D. Public
Interest Conclusion
[44]
The
public interest at issue in the Minister’s decision is the public interest in
aviation safety. The Minister contends that two incidents tipped the scale in
concluding that renewal of the AME licence was not in the public interest. The
TATC assigned these events little or no significance.
[45]
It
is noteworthy that in the end, the Minister’s non-renewal decision could not be
supported on grounds of “incompetence” but the same facts were relied upon to
support the “public interest” conclusion.
[46]
It
is not for this Court to review the evidence and reach a conclusion on the
merits of the Minister’s conclusion. In reaching its conclusion the Minister is
entitled to look at a licensee’s entire record. In this instance the Minister
had four infractions established, one in respect of an aircraft for which there
was no penalty, two in respect of another aircraft and one in respect of a
third aircraft. All of the penalties assessed were reasonably light given the
powers of enforcement which the Minister has available.
[47]
As
the TATC noted, there have been no other cases where the Minister has refused
to renew an AME licence. The TATC went on to consider cases where the Minister
suspended or cancelled an AME licence or revoked some other aviation document,
all of which involved more serious and repeated conduct than that of the
Applicant.
[48]
In
these other cases, the number of incidents of infractions was much higher than
Bancarz’s; for example, in Jensen v. Canada (Minister of
Transport),
[1997] C.A.T.D. No. 49, there were 65 contraventions over 30 years; in Spur
Aviation Ltd. v. Canada (Minister of Transport), [1997] C.A.T.D. No. 24
(Jensen’s company), there were 100 incidents resulting in cancellation. In Marin
v. Canada (Minister of
Transport),
[1995] C.A.T.D. No. 14, the Minister suspended Mr. Marin’s AME licence on
grounds of incompetence based upon 15 major incidents. Despite the finding of
incompetence, Marin was given an opportunity to re-qualify.
[49]
Other
cases such as Poole v. Canada (Minister of Transport), [2000] C.A.T.D.
No. 55 and Lockhart v. Canada (Minister of Transport), [1999]
C.A.T.D. No. 29, indicate that in this field of regulated activity there must
be either numerous incidents or major incidents with clear evidence of
wrongdoing to justify suspension or cancellation.
[50]
The
review panel’s conclusion was that, viewed collectively, the incidents show a
pattern of unacceptable behaviour for which post remedial action has been
ineffective. The decision does not, however, address the dichotomy between past
cases and this one in terms of “public interest” or penalty.
[51]
The
Minister is not bound by these precedents, although they do impact on the
“patent unreasonableness” or “reasonableness” of the Minister’s conclusion. The
precedents do speak to the issue of remedy and the Minister’s failure to
articulate the reason for the penalty (which does not allow for remedial steps
or re-qualification procedures). In that regard, the Minister’s reasons are
inadequate.
V. REMEDY
[52]
The
Applicant asks that this Court grant an order of mandamus to renew his AME
licence. This is a case where the four criteria for mandamus described in Brown
and Evans, Judicial Review of Administrative Action in Canada, (Toronto: Canvasback
Publishing, 2000) have largely been made out. The Applicant has met the
objective criteria for licence renewal, there is a duty owed to Bancarz, the
Minister’s discretion could be said to be spent by virtue of an improper
decision (see Burlock v. Dispensing Opticians of Nova Scotia, [1989]
N.S.J. No. 45 (N.S.S.C.T.D.)) and there has been a demand and refusal.
[53]
However,
even if the four criteria for mandamus have been met, the Court has a
discretion to grant this remedy, which it will not exercise in this instance.
The Minister has a serious overriding obligation to public safety. Personal
interests must give way, to some extent, to the regulatory environment
particularly in respect of safety. While the Court has concerns that referring
the matter back for a further reconsideration invites the inevitable result of
confirmation of the original decision, the Court is satisfied that a properly
performed reconsideration will result in a proper finding, properly based, and
a sustainable remedy consistent with these reasons.
VI. CONCLUSION
[54]
For
these reasons, the remedy of mandamus is denied. The judicial review is
allowed, the Minister’s decision is quashed and the matter of renewal of the
Applicant’s AME licence is referred back to the Minister for a new
reconsideration by a different panel (if that procedure is issued) and by a
different delegate (if the Minister chooses to delegate the decision). The
Applicant shall have his costs of this judicial review.
JUDGMENT
IT IS ORDERED THAT the
application for judicial review is allowed, the Minister’s decision is quashed
and the matter of renewal of the Applicant’s AME licence is referred back to
the Minister for a new reconsideration by a different panel (if that procedure is
used) and by a different delegate (if the Minister chooses to delegate the
decision). The Applicant shall have his costs of this judicial review.
“Michael
L. Phelan”
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