Date:
20130104
Docket:
T-855-12
Citation: 2013
FC 5
Ottawa, Ontario,
January 4, 2013
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Applicant
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and
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TREVOR S. ANNON AND
LEEANN C. MCLAREN
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
The
respondents, Captain Trevor Annon and First Officer Leeann McLaren, are pilots
with Canadian North Airlines. In 2011, they underwent a Pilot Proficiency Check
(PPC) administered by Captain Kyle Franczak who, in turn, was monitored by
Inspector Duncan Wilson from Transport Canada.
[2]
During
the PPC, FO McLaren piloted the plane while Cpt Annon performed the non-flying
duties. Cpt Franczak instructed the crew to enter a specific holding pattern on
approach to Vancouver International Airport. This manoeuvre engaged the
autopilot system on their Dash 8 aircraft. FO McLaren turned an instrument, the
“heading bug,” to the right to effect a right turn. However, she turned the bug
too far, causing the plane to bank left, not right.
[3]
Cpt
Annon and FO McLaren attempted to reset the bug, but failed. Concerned about
tail winds that would put them off course, FO McLaren suggested they continue
their left turn and change their approach. Cpt Annon agreed.
[4]
At
that point, Inspector Wilson terminated the PPC because the crew had
demonstrated an inability to operate the autopilot system on the aircraft. Both
pilots were suspended as a result. They sought a review of the Inspector’s
decision before the Transportation Appeal Tribunal of Canada (TATC). The TATC
allowed their application and referred the matter back to the Minister of
Transport for reconsideration.
[5]
The
Minister now seeks to review the decision of the TATC, arguing that the
tribunal erred in its conclusion that the pilots’ actions should not have
resulted in a failure. The Minister asks me to quash the TATC’s decision.
However, I cannot find any grounds to overturn the TATC’s decision – it was not
unreasonable. Therefore, I must dismiss this application for judicial review.
[6]
There
are two issues. First, I must decide what standard of review to apply to
decisions of the TATC. Given my conclusion that the appropriate standard of
review is reasonableness, I must then determine whether the TATC’s decision was
unreasonable.
II. The TATC’s Decision
[7]
The
TATC heard Inspector Wilson’s testimony that the pilots were simply unable to
operate the autopilot system and that that was enough for them to fail the PPC.
He agreed that pilots sometimes make mistakes and must be able to correct them
in a timely fashion, but that was not what happened in this case.
[8]
FO
McLaren explained her error in turning the bug too far. In the circumstances,
she felt the safest course was to continue a left turn and perform a parallel, rather
than a direct, entry to the airport. Otherwise, tailwinds might have forced
them out of protected airspace. Cpt Annon agreed. So did Cpt Franczak.
[9]
The
TATC concluded that the crew reacted to their error in a safe manner. The
pilots discussed the situation, agreed on a course of conduct, and executed it
successfully. The Inspector’s concern was legitimate, but there was ample time
during the test to give the crew another chance to demonstrate their ability to
operate the autopilot. The tribunal concluded that the Minister had failed to
show that the pilots did not meet the applicable standard and remitted the
matter back to the Minister for reconsideration.
III. Issue One – What is
the appropriate standard of review?
[10]
The
Minister argues that the TATC is owed no deference and, therefore, the Court
should overturn its decision if it was incorrect. The Minister’s position is
based on the fact that the decision was made by a single member of the TATC.
Further, there is no privative clause limiting judicial review of the
tribunal’s decisions, which indicates that a correctness standard should apply.
[11]
I
disagree.
[12]
Decisions
of the TATC can generally be appealed to a three-member appeal panel. However,
the Minister does not have a right of appeal. Therefore, the Minister’s only
remedy is by way of judicial review.
[13]
It
is clear that judicial review of decisions of the appeal panel is generally
conducted on a reasonableness standard. The appeal panel is regarded as having
expertise in transportation matters and charged with making decisions to
protect public safety. Similarly, a single member of the TATC is an expert
decision-maker serving a similar purpose, suggesting that a reasonableness
standard should apply to it, too.
[14]
Further,
both the appeal panel and the single-member TATC panel generally make decisions
based on findings of fact or mixed questions of fact and law. This, too, points
toward a reasonableness standard: Asselin v Canada (Minister
of Transport), [2000] FCJ No 256 (TD). However, in cases where issues of
jurisdiction arise, they are reviewed on a correctness standard: Air Nunavut
v Canada (Minister of Transport) (2000), [2001] 1 FC 138
(TD).
[15]
It
appears that the sole difference between a single-member TATC decision and an
appeal panel decision is the absence of a privative clause in respect of the
former. But this is just one factor to consider; it is not determinative: Dunsmuir
v New Brunswick, 2008 SCC 9, at para 64.
[15]
[16]
Further,
the appeal panel itself must show deference toward the TATC: it would be odd to
have a situation in which, in order to succeed, a person seeking to overturn a
decision of the TATC would have to persuade an appeal panel that the tribunal’s
decision was unreasonable, while the Minister could successfully overturn a
TATC’s decision by showing that it was incorrect. Absent a more explicit
indication that that was Parliament’s will, fairness suggests that the parties
should have parallel remedies.
[17]
I
am satisfied that the issue here is one of mixed fact and law. The TATC had to
review the evidence and measure the pilots’ conduct against a standard set out
in regulations. The obvious standard of review to apply is reasonableness.
IV. Issue Two – Was the
TATC’s decision unreasonable?
[18]
The
Minister maintains that Cpt Annon and FO McLaren simply failed to operate the
autopilot properly. Therefore, they failed the PPC. The TATC’s conclusion that
their corrective actions were appropriate in the circumstances was not a
defensible outcome in the face of those stark facts.
[19]
On
the contrary, I find that the TATC’s conclusion was not unreasonable. The
tribunal referred to the Flight Test Guide published by Transport Canada which
provided that pilots should be scored a passing grade of “basic standard” even
in situations where “major deviations from the qualification standards occur” so
long as they are “recognized and corrected in a timely manner”. A pilot who
receives a “basic standard” score is allowed to repeat the requested sequence
later in the PPC.
[20]
The
TATC considered all of the testimony before it and concluded that the pilots
took the safest option in the circumstances, one which allowed them to complete
the assigned exercise successfully. They discussed the options and chose an
acceptable course. The TATC noted that this kind of decision-making should not
be taken away from a flight crew.
[21]
In
my view, the TATC’s decision is intelligible, transparent and justified. It
represented a defensible outcome based on the facts and the law.
V. Conclusion and
Disposition
[22]
Decisions
of the TATC should generally be reviewed on a reasonableness standard. Here,
the TATC based its decision on the evidence before it and arrived at a
conclusion that fell within the range of defensible outcomes. It was not
unreasonable. Therefore, I must dismiss this application for judicial review,
with costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is dismissed with costs.
“James W. O’Reilly”
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