Docket: T-1092-15
Citation:
2016 FC 583
Ottawa, Ontario, May 26, 2016
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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JADE BETHUNE
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is the judicial review of a decision by the
Transportation Appeal Tribunal of Canada [TATC] reviewing the decision by the
Minister of Transport to refuse to issue a medical certificate to the
Respondent. The medical certificate is necessary for the Respondent to apply to
become an air traffic controller.
The
TATC referred the matter back to the Minister for reconsideration.
II.
Background
[2]
The Respondent has a history of mental illness
including depression. With the help of his psychiatrist and through trial and
error, he found two particular medications that put his depression in
remission. Any alteration of this combination has led to regression.
[3]
It is difficult not to feel sympathy for Mr.
Bethune. He has his heart set on becoming an air traffic controller. In order to
do so, he needs a medical certificate as prescribed in the Canadian Aviation
Regulations, SOR/96-433. It is not necessary to lay out the detailed
regulatory scheme in order to understand this matter.
[4]
The Respondent underwent a medical examination
as part of his application to obtain a Category 2 medical certificate. The
certificate is a requirement to begin training as an air traffic controller.
[5]
As part of that process, a psychiatrist from the
Minister’s Aviation Medical Review Board [AMRB] noted that Mr. Bethune was not
qualified for the medical certificate because he was an initial applicant
taking two psychotropic drugs. Transport Canada did not have adequate
information to make a judgment on his illness.
[6]
In follow-up communications, the Respondent’s doctor
provided further information to Transport Canada. Eventually, Transport Canada
concluded that Mr. Bethune was unfit because he is under long-term treatment that
requires the use of two drugs.
[7]
The Respondent asked for and was granted a
review by the TATC. The TATC referred the matter back to the Minister for
reconsideration.
[8]
The TATC Member, having reviewed the evidence,
found that more information was needed to assess Mr. Bethune’s mental health
before accepting or rejecting his medical certification for an air traffic
controller position. The Member concluded that psychiatric records of at least five
years would give Transport Canada a better basis for a decision. Transport
Canada should also provide more medical documentation on possible side effects (if
any) of one of the medicines taken by Mr. Bethune.
[9]
The Member held that the assessment done by
Transport Canada’s doctor was an inadequate basis for AMRB assessment. The
criterion at issue was whether Mr. Bethune had a “significant
mental abnormality” that would render him unable to safely exercise the
licence at issue – an air traffic controller licence.
[10]
The Minister challenges the TATC decision
requiring the Minister to reconsider the matter.
III.
Analysis
[11]
It is settled that the standard of review
applicable to TATC review decisions of this type is reasonableness (Canada
(Attorney General) v Annon, 2013 FC 5, 424 FTR 239).
[12]
The statutory scheme for aviation approvals,
licences and related matters vests a broad discretion in the Minister to act in
the interests of public security.
[13]
That broad discretion is not absolute. The TATC
is a specialized tribunal, with members who have relevant experience, tasked
with reviewing decisions such as the one at issue.
[14]
This is an instance where the Court must accord
great deference to the TATC in acting within its expertise. It was Parliament’s
intention that the Tribunal act as an oversight on the Minister, and most
particularly his officials. There is no issue of the Tribunal usurping
Ministerial responsibilities. The decision simply directs the Minister to look
at the matter with better evidence.
[15]
The TATC carefully reviewed the documentary and
oral evidence and found the basis for the Minister’s decision to be inadequate.
[16]
The Applicant has not been able to show that the
TATC’s decision fell outside the range of possible, acceptable outcomes
defensible in respect of the facts and the law (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190).
[17]
It was suggested in argument that no new
information would change the Minister’s decision. I take this as a piece of
enthusiastic argument and not as a statement of Ministerial policy. If it were
policy, there could be grave consequences to a biased and bad faith
reconsideration.
[18]
The Applicant has the obligation to reconsider
this matter in the context of existing as well as new evidence. The
reconsideration will no doubt be conducted properly.
IV.
Conclusion
[19]
For these reasons, I will dismiss the judicial
review with costs in respect of a self-represented litigant.
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