Date: 20020314
Docket: A-101-01
Neutral citation: 2002 FCA 102
CORAM: DÉCARY J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
PETER HUDGIN
Appellant
and
ATTORNEY GENERAL OF CANADA
(MINISTER OF TRANSPORT)
Respondent
Heard at Ottawa, Ontario, on March 12, 2002.
Judgment delivered at Ottawa, Ontario, on March 14, 2002.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: DÉCARY J.A.
SEXTON J.A.
Date: 20020314
Docket: A-101-01
Neutral citation: 2002 FCA 102
CORAM: DÉCARY J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
PETER HUDGIN
Appellant
and
ATTORNEY GENERAL OF CANADA
(MINISTER OF TRANSPORT)
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
[1] On December 16, 1997, an air traffic controller-trainee at Dorval Airport gave an instruction to an aircraft authorizing the pilot to use taxiway B2 and to cross runway 28. Shortly afterwards, the trainee authorized another aircraft to take off from the same runway. No accident occurred because the pilot of the first aircraft could see the other aircraft taking off and did not enter the runway.
[2] When the trainee gave the instruction, he was under the supervision of Peter Hudgin, who was the air traffic controller on duty. The question to be decided is whether a supervising air traffic controller can be found to have breached the regulation prohibiting the issue of instructions contrary to the applicable standards governing the separation of aircraft on a runway, when the instruction was in fact given by the trainee.
[3] This is an appeal by Mr. Hudgin from a decision of a Judge of the Trial Division, reported as Hudgin v. Attorney General of Canada, [2001] F.C.J. No. 131, dismissing an application for judicial review of a decision of an Appeal Panel of the Civil Aviation Tribunal. The Appeal Panel had upheld a decision of the Civil Aviation Tribunal confirming a penalty of $250.00 imposed under section 7.7 of the Aeronautics Act, R.S.C. 1985, c. A-2, by the Minister of Transport on Mr. Hudgin for issuing an air traffic control instruction in breach of the relevant standard.
[4] The Appeal Panel held that Mr. Hudgin had breached the regulation and confirmed the penalty, on the ground that he was the air traffic controller on duty at the material time, that the trainee was under his supervision and control, that he was responsible for monitoring the trainee's communications, and that he did not hear or understand the instruction given by the trainee, because he was busy with other things in the tower and the headsets supplied to the controllers were not "the best".
[5] In its reasons for decision, the Appeal Panel found that Mr. Hudgin was at fault because he was busy with other tasks and was not paying sufficiently close attention to the trainee's communications with the aircraft. The Appeal Panel also noted that the absence from the regulations of a duty on air controllers with respect to the trainees under their supervision does not preclude "the application of the broader general principles of law as it concerns the principal-servant, employer-employee and principal-agent relationships." The Appeal Panel concluded that Mr. Hudgin had not exercised "all due diligence to ensure that this situation would not occur or be corrected quickly."
[6] In the Trial Division, the Judge upheld the Appeal Panel's decision on the basis of Mr. Hudgin's own statements: that he was the air traffic controller on duty when the instruction was given; that he was "ultimately responsible for the position" as the air traffic controller; that it was his duty to monitor the trainee's actions and that he did not "understand" the instruction because he was doing other things and the headsets were not the best. Finally, the Judge stated that, in view of these admissions, it was not necessary to consider either the standard of care owed by air traffic controllers with respect to students under their supervision, or notions of vicarious liability.
[7] The Judge held that the standard of review applicable to the Appeal Panel's decision is the middle-of-the-spectrum standard of unreasonableness. In other words, the Appeal Panel will have erred in law if, on an application for judicial review, its decision is held to be clearly wrong or to be unable to withstand "a somewhat probing examination", as Iacobucci J. put it in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, at paragraph 56. Counsel did not take issue with this, although counsel for Mr. Hudgin also argued that, to the extent that the Appeal Panel relied on principles of general law, in particular, the principles governing the liability of principals for the actions of their agents, or of employers for actions of their employees, a more demanding standard of review was appropriate. For the purpose of this appeal, I am prepared to assume, but without deciding the issue, that the applicable standard in this case is that of unreasonableness.
[8] The appeal turns on the interpretation of subsection 801.01(2) of the Canadian Aviation Regulations, S.O.R. 96/433, the provision under which Mr. Hudgin was charged. It provides as follows:
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801.01(2) No air traffic controller shall issue an air traffic control clearance or an air traffic control instruction except in accordance with the Canadian Domestic Air Traffic Control Separation Standards.
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801.01(2) Il est interdit au contrôleur de la circulation aérienne d'émettre une autorisation du contrôle de la circulation aérienne ou une instruction du contrôle de la circulation aérienne, à moins que celles-ci ne soient émises conformément aux Normes d'espacement du contrôle de la circulation aérienne de l'intérieur canadien.
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[9] It was not disputed that the instruction given was not in accordance with the separation standards. The only question to be decided is whether "an aircraft traffic controller issues an air traffic control instruction" within the meaning of that provision, when the instruction in question is given by a trainee under the supervision of the air traffic controller on duty.
[10] Mr. Hudgin's argument is very simple: he cannot be found guilty of giving an improper instruction, because the instruction in question was not given by him, but by the trainee. In my opinion, the Appeal Panel's decision that Mr. Hudgin breached this provision was unreasonable, and therefore erroneous in law, because the only air traffic control instruction was given by another person, namely the trainee. As counsel put it, the Minister has simply failed to prove that Mr. Hudgin had committed the actus reus of the offence with which he was charged.
[11] In his argument before us counsel for the Minister defended the Tribunal's decision on the ground that it was based solely on the facts and circumstances of the case: in particular, that while he was the controller on duty in the tower, Mr. Hudgin controlled the activities of the trainee, was responsible for the trainee's actions and was under a duty to monitor them. Moreover, Mr. Hudgin's admissions that he did not understand the instruction given by the trainee because he was busy with other things prevented him from raising a defence of due diligence. Counsel submitted that the references in the Appeal Panel's reasons to the general legal concepts of employer and employee, and principal and agent were not necessary for its decision.
[12] In my opinion, these arguments are not responsive to the appellant's basic point: he was charged with issuing an improper instruction when the instruction was issued, not by him, but by the trainee. There is nothing in the regulation, or in any more general legal principle, whereby the action of one employee can be deemed to be that of another. The situation may be different if an air traffic controller instructed a trainee to issue a particular instruction, but that is not our case.
[13] In the absence of a provision in the regulations imposing on air traffic controllers a duty to supervise trainees for whom they are responsible, Mr. Hudgin's admissions that he was "responsible" for the trainee's actions, and was under a duty to monitor them, are immaterial in a proceeding to determine if he was in breach of the statutory duty not to issue an improper instruction. Whether Mr. Hudgin committed the offence with which he was charged cannot simply be decided "on the facts", without regard to the terms of the relevant provision of the regulation. In my opinion, there was no rational basis for the conclusion that the Appeal Panel had to reach before it could find Mr. Hudgin guilty, namely, that he had issued the instruction in question.
[14] I would only add that there would seem to have been an unfortunate gap in the regulations when the near-fatal incident giving rise to these proceedings occurred. As the facts of this case illustrate, potentially grave consequences may result from an air traffic controller's failure adequately to supervise a trainee under her or his supervision in the tower. In view of this, it is surprising that the regulations did not require air traffic controllers on duty to exercise reasonable care to ensure that improper instructions are not given by trainees under their supervision.
[15] Further, we are not being asked in this appeal to decide whether, despite the absence of such a statutory duty of care, the employer could discipline a controller who was derelict in the performance of his or her employment duties by failing properly to supervise the actions of a trainee in the tower. Hence, nothing in these reasons precludes the possibility that disciplinary proceedings could be brought in such circumstances.
[16] For these reasons I would allow the appeal with costs, set aside the order of the Trial Division and allow the application for judicial review with costs, and set aside the decision of the Appeal Panel of the Civil Aviation Tribunal. I would remit the matter to the Appeal Panel with a
direction to allow the appeal from the Civil Aviation Tribunal and to disaffirm the notice of penalty of $250.00 assessed by the Minister of Transport against Peter Hudgin.
"John M. Evans"
J.A.
"I agree
Robert Décary J.A."
"I agree
J. Edgar Sexton J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-101-01
STYLE OF CAUSE: Peter Hudgin v. Attorney General of Canada (Minister of Transport)
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 12, 2002
REASONS FOR JUDGMENT : Evans, J.A.
CONCURRED IN BY: Décary, J.A.
Sexton, J.A.
DATED: March 14, 2002
APPEARANCES:
Mr. Sean T. McGee FOR THE APPELLANT
Mr. Robin B. Carter FOR THE RESPONDENT
SOLICITORS OF RECORD:
Nelligan O'Brien Payne LLP FOR THE APPELLANT
Ottawa, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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