Date: 19990729
Docket: T-972-98
BETWEEN:
FRANK KISS
Applicant
- and -
THE MINISTER OF TRANSPORTATION
Respondent
REASONS FOR ORDER
GIBSON J.:
INTRODUCTION
[1] These reasons arise out of an application for judicial review described in the application in the following terms:
| ...of the medical assessment and appeal process pursuant to the Aeronautics Act and in particular Sections 7, 7.1, 7.2 and 7.3 for a declaration that the process set forth in the Aeronautics Act offends the principles of nature [sic] justice by: |
| i. Failing to comply to the rule audi alterum parti failing to maintain an appropriate level of independence from which the appeal was taken. ii. Failing to comply with the rules of fairness. iii. Failing to establish a truly independent tribunal with power to review and overturn the decision of the department. iv. Failing to establish own appeal process free of bias or the appearance of biases. |
More precisely, I am satisfied that the application for judicial review arises out of a decision of the Acting Director, General Aviation, Safety and Security, Transport Canada, dated the 26th of March, 1998 and contained in a letter addressed to the applicant,1 the substance of which reads as follows:
| In reference to Mr. Cooper"s letter of March 16, 1998, I now understand that you have elected not to present any additional information. I have reviewed your case and I wish to inform you that, upon reconsideration based on our current information, you are still considered unfit for a Category 3 Medical Certificate. |
| Therefore, I must confirm the "refusal to renew" of your Category 3 Medical Certificate. This means that you are not permitted to exercise the privileges of your Private Pilot License at this time. .... |
The "Mr. Cooper" referred to in the foregoing quotation was at all times counsel for the applicant.
[2] In the Applicant"s Record,2 the applicant requests the following relief:
| 1. Grant an Order in the nature of Certiorari quashing the decision of the Minister to suspend the license of the Applicant being license number P362129 to operate a private single engine aircraft. |
| 2. Grant an Order in the nature of Mandamus directing that the Minister establish by statute or regulation an appeal process with respect to the suspension or cancellation of some or all of the rights associated with an existing pilot"s license within Canada that meets the basic principals [sic] of natural justice. |
| 3. Direct by an Order in the nature of Mandamus the reinstatement of license number P362129 in favor of the Applicant forthwith. |
| 4. Or in the alternative, to [sic] relief set forth in Clause 3 above, an Order that the Minister reconsider his decision complained of by the Applicant and to grant [sic] the Applicant those rights retained by him pursuant to the principles of natural justice. |
| 5. Direction [sic] payment of costs of the application. |
[3] At the opening of the hearing of this matter, counsel for the applicant advised the Court that no notice had been served on the Attorney General of Canada and the Attorney General of each province in accordance with section 57 of the Federal Court Act3 and that such a notice might be interpreted to be required, particularly in respect of paragraph 2 in the reliefs sought, as quoted immediately above. In the result, counsel urged that no such notice was required but if the Court was of a different opinion, counsel requested an adjournment to provide time to give notice.
[4] The applicant"s application for a hearing date for this matter clearly indicated on its face that no notice under section 57 would be required. In the circumstances, I advised counsel that I was concerned about the second relief requested and that no adjournment would be provided. In the result, argument before me was essentially restricted to the reliefs other than that described in paragraph 2 quoted above.
[5] With respect to the first relief sought, it was acknowledged before me that the Minister had not "suspended" the license of the applicant to operate a private single engine aircraft. Rather, the Minister had refused to renew the applicant"s Category 3 Medical Certificate, as noted earlier in these reasons, with the effect that the privileges associated with the applicant"s private pilot"s license were no longer operative.
THE FACTUAL BACKGROUND
[6] The factual background to this application for judicial review was essentially not in dispute. It may be summarized as follows.
[7] The applicant is the holder of a private pilot"s license. To exercise the privileges of his license, he requires a valid medical certificate renewed at one year intervals4. To obtain a medical certificate or a renewal thereof, the applicant has to undergo a medical examination by a Civil Aviation Medical Examiner5 chosen by him and provide the resulting information regarding his medical fitness to the respondent (the "Minister").
[8] In August of 1996, to secure the renewal of his medical certificate, the applicant was examined by an appropriately qualified medical examiner chosen by him. The medical examiner recommended that the applicant was unfit by reason of the residual effects of a stroke.
[9] Following receipt of the medical examiner"s recommendation, appropriate officials in the Minister"s Department concluded that the applicant was medically unfit. The conclusion was then referred to the Aviation Medical Review Board (the "Board"), a board of medical specialists that advises the respondent on aviation medical matters. The Board recommended to the Minister that the applicant was unfit "long-term".
[10] The applicant was, on behalf of the Minister, advised of this conclusion in writing, and during a telephone conversation.
[11] An official in the Minister"s Department informed the applicant that he was refused renewal of his medical certificate. The applicant filed a request with the Civil Aviation Tribunal [the "Tribunal"] for a review of the refusal.
[12] The applicant provided additional medical information to the Minister including an April, 1997 medical examination report by another Civil Aviation Medical Examiner chosen by the applicant. This second report also recommended that the applicant was unfit. A third report, provided by a neurologist not designated as a Civil Aviation Medical Examiner ["Dr. Witt"], also chosen by the applicant, was provided. This report acknowledged "...that officially [the applicant] did not meet the criteria ...". The additional material was considered on behalf of the Minister. Once again, following consultation with the Board, the Minister"s officials determined the applicant to be unfit. The applicant was so advised, on behalf of the Minister, in writing.
[13] In the result, the applicant was advised, in part, as follows6:
I regret to inform you that you are not considered medically fit to exercise the privileges of your Private Pilot Aeroplane License and pursuant to subsection 7.1(1) of the Aeronautics Act, your Medical Certificate issued on 10 August 1995 is not renewed.
This notification was provided by the Acting Manager, General Aviation, Prairie and Northern Region for the Minister. The notification is dated the 23rd of June, 1997.
[14] The Civil Aviation Tribunal reviewed the Minister"s decision to refuse to renew the applicant"s Aviation Medical Certificate. The only witness that appeared before the Tribunal was Dr. Witt, earlier referred to. In reasons for the Tribunal"s determination7, the determination being dated the 13th of November, 1997, the presiding member of the Tribunal wrote:
When Dr. Witt last examined Mr. Kiss, he could not find any neurological abnormality. His last EEG did not show any epileptic type activity, and his MRI did not show any major abnormality. Dr. Witt also stated that Mr. Kiss was in normal health for a 72-year-old other than his well-controlled hypertension and possibly a slight increased risk.
...
After having carefully reviewed the facts, I recommend that this case be referred back to the Minister for reconsideration.
It was not in dispute before me that the recommendation of the Tribunal was open in law to the Tribunal.
[15] In response to the determination of the Tribunal, the Minister submitted the medical data provided to him by the applicant to the Defence and Civil Institute of Environmental Medicine for evaluation and recommendation by the Institute"s Central Medical Board. An affiant on behalf of the respondent attests to the fact that this Board is comprised of individuals with professional medical and aviation medical qualification. He further attests that it is an agency independent of the Minister, used by the Minister for independent advice in situations such as that before the Court.
[16] The Central Medical Board recommended "...that [the applicant] be considered permanently unfit for pilot licensing."8
[17] The Minister advised the applicant of this recommendation and invited the applicant to respond in writing to the recommendation prior to the making of a final decision.
[18] In a preliminary response9, counsel for the applicant wrote:
It seems odd that having gone to the trouble and expense of having had the matter before CAT [Civil Aviation Tribunal] and succeeding at that level that the matter is returned to the initial process basket for precisely the same result that seems to have been overturned, in essence by the Tribunal. You can appreciate that this is a very unsatisfactory process from the point of view of the person whose rights are being denied.
...
I appreciate the importance of the work in which your department is engaged i.e. protection of pilots and the general public from as much risk as is possible in the circumstances. I trust that you appreciate that this risk must be balanced with the conditional right or privilege of an individual pilot, duly certified, to fly. Some risk is always inherent in this form of activity and finding a balance is always going to be difficult. Nevertheless this process seems unduly circular and unfair and does not allow a person such as my client a reasonable opportunity to present his case.
In a more definitive response, counsel for the applicant requested that the applicant be given an opportunity to present evidence before the person or persons determining whether or not to accept the recommendations of the Central Medical Board, that the applicant be provided with a complete list of the material that was before the Central Medical Board and an explanation as to why the applicant or his representative was not asked to provide input to that Board. The applicant was provided with a list of the material that was before the Central Medical Board which did not include a copy of the reasons for determination of the Tribunal or of the transcript of the hearing before the Tribunal.
[19] In the event, the applicant chose not to respond, in any substantive way, to the recommendations of the Central Medical Board and provided no new medical information. Further in the event, the decision here under review was taken.
THE ISSUES
[20] In the hearing before me, the primary issue urged on behalf of the applicant was that the applicant had been denied natural justice or procedural fairness10 in the process adopted by the Minister in determining, following the decision of the Tribunal, to uphold his earlier decision to deny renewal of the applicant"s Category 3 Medical Certificate with the result that the applicant"s private pilot"s license remained ineffective. A secondary issue urged on behalf of the applicant was to the effect that the same process adopted by the Minister gave rise to a reasonable apprehension of bias on the part of the Minister.
PROCEDURAL FAIRNESS - GENERAL PRINCIPLES
[21] The Supreme Court of Canada recently commented at some length on the principles relevant to the determination of the content of the duty of procedural fairness. In Baker v. Canada (Minister of Citizenship and Immigration)11, Madame Justice L"Heureux-Dubé writes:
The fact that a decision is administrative and affects "the rights, privileges or interests of an individual" is sufficient to trigger the application of the duty of fairness ... .
For the foregoing proposition, she cites Cardinal v. Director of Kent Institution12. I am satisfied that the decision here under review is administrative in nature and that it affects the privileges and interests of the applicant, if not his rights.
[22] Madame Justice L"Heureux-Dubé notes that:
The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations.
She quotes from her reasons in Knight v. India Head School Division No. 1913 to the following effect:
...the concept of procedural fairness is eminently variable, and its content is to be decided in the specific context of each case.
Madame Justice L"Heureux-Dubé provides a non-exhaustive list of five factors affecting the content of the duty of fairness. They are the following:
| - the nature of the decision being made and the process followed in making it; |
| - the nature of the statutory scheme and the "terms of the statute pursuant to which the body operates"; |
| - the importance of the decision to the individual or individuals affected; |
| - the legitimate expectations of the person challenging the decision; and |
| - the choices of procedure made by the [decision-maker] itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the [decision-maker] has an expertise in determining what procedures are appropriate in the circumstances. |
[23] In summation, Madame Justice L"Heureux-Dubé writes:
The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.
[24] I will review the concerns of the applicant regarding the procedural fairness or lack thereof accorded to him against the foregoing principles but first, I will turn to the question of the approach to, or standard of review of, discretionary decision-making, a subject also examined in the Baker decision.
THE STANDARD OF REVIEW
[25] The Aeronautics Act14 vests broad discretion in the Minister to refuse to issue a "Canadian Aviation Document", an expression that includes any license, permit, accreditation, certificate or other document issued by the Minister under Part I of the Act. In particular, the Minister may refuse to issue a Canadian Aviation Document where he or she is of the opinion that the public interest warrants it. The "public interest", and in particular the public interest in safety, was acknowledged by counsel for the applicant to be an overriding consideration underlying the pilot licensing scheme under the Aeronautics Act . I am satisfied that the decision here under review should be classified as a "discretionary decision".
[26] In Baker, commenting on "discretionary decisions", Madame Justice L"Heureux-Dubé wrote:
The rule has been that decisions classified as discretionary may only be reviewed on limited grounds such as the bad faith of decision-makers, the exercise of discretion for an improper purpose, and the use of irrelevant considerations; ... A general doctrine of "unreasonableness" has also sometimes been applied to discretionary decisions:... In my opinion, these doctrines incorporate two central ideas - that discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, but that considerable deference will be given to decision-makers by courts in reviewing the exercise of that discretion and determining the scope of the decision-maker"s jurisdiction. These doctrines recognize that it is the intention of a legislature, when using statutory language that confers broad choices on administrative agencies, that courts should not lightly interfere with such decisions, and should give considerable respect to decision-makers when reviewing the manner in which discretion was exercised. However, discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law ..., in line with general principles of administrative law governing the exercise of discretion, and consistent with the Canadian Charter of Rights and Freedoms ... . [citations omitted]
| [27] Madame Justice L"Heureux-Dubé identified four factors to be considered in determining the appropriate standard of review of the discretionary decision of a Minister that was there before the Court. Those factors are the following: |
| - the presence or absence of a privative clause in the empowering legislation; |
| - the expertise of the decision-maker; |
| - the purpose of the provision enabling the decision in particular and of the Act as a whole; and |
| - the nature of the problem in question, especially whether it relates to determination of law or facts. |
Madame Justice L"Heureux-Dubé concluded with respect to the decision-making authority before her:
These factors must be balanced to arrive at the appropriate standard of review. I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court - Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
[28] While the facts of this matter are, of course, different from those that were before the Supreme Court in Baker, I reach the same conclusion, that is, while considerable deference should be accorded to the Ministerial decision here under review but that the standard should not be as deferential as "patent unreasonableness" but rather be at the point or within the range on the spectrum between that standard and "correctness" that has been identified by the Supreme Court as "reasonableness simpliciter".
[29] Against that standard, I turn to an analysis of the content of the common-law duty of procedural fairness on the facts of this matter.
PROCEDURAL FAIRNESS - ON THE FACTS OF THIS MATTER
[30] The nature of the decision here under review is that it is discretionary, the authority to make the decision is vested in the Minister, and it is made in the context of a statutory scheme, without a privative clause and at the heart of which is acknowledged to be protection of public safety.
[31] As noted earlier, the statutory scheme vests broad discretion in the Minister in the interest of public safety.
[32] The decision is of significant import to the applicant but is not of such import as to affect in a positive or negative way his personal safety or security, except as a pilot, or his ability to earn a living.
[33] On behalf of the applicant, it was urged that the applicant has a legitimate expectation that, having previously received medical approvals, his medical approval would be renewed in the absence of clear and unequivocal evidence of a medical condition that, if he were permitted to fly as a private pilot, would result in a significant danger to public safety.
[34] Finally, the Aeronautics Act leaves to the Minister broad discretion as to the procedures to be followed in arriving at a decision such as that here under review. Certain safeguards are built into the decision-making process both by the Act and by Regulations made under the Act, but it was not argued before me that those safeguards were, on the facts of this matter disregarded.
[35] Against the foregoing, I conclude that, on the facts of this matter, there was no breach of the duty of fairness owed by the Minister to the applicant. Following referral back to the Minister by the Civil Aviation Tribunal of the Minister"s refusal to renew the applicant"s medical certificate, the Minister, through qualified officials, sought independent advice from a body not previously involved with the issue, that body being the Central Medical Board of the Defence and Civil Institute of Environmental Medicine. The Minister provided to the Central Medical Board the material on which he based his first decision and on which he based his affirmation of that decision, including the extensive material provided to the Minister by or on behalf of the applicant. It is true that the Minister did not provide to the Central Medical Board the reasons for decision of the Civil Aviation Tribunal or a transcript of the hearing before that Tribunal which recorded the testimony of Dr. Witt which apparently influenced the Tribunal to refer the matter back. It is also true that the Minister did not advise the applicant that it was seeking the advice of the Central Medical Board and thus no opportunity was provided to the applicant to make separate written or oral submissions to the Central Medical Board. I am satisfied that those omissions are not at all critical.
[36] Following receipt of a recommendation from the Central Medical Board and from the Senior Consultant, Clinical Assessment, Civil Aviation Medicine in the Minister"s Department, both of which recommendations were to maintain the position previously adopted by the Minister, an official on behalf of the Minister wrote to the applicant, enclosing the recommendations and offering him an opportunity to again respond with an opportunity to include in that response "...any medical information [you] consider appropriate." The applicant chose not to avail himself of the opportunity to respond in any substantive way.
[37] In the event, the Minister affirmed his earlier decision not to renew the applicant"s medical certificate.
[38] I am satisfied that the applicant was afforded an appropriate level of procedural fairness in the process leading to the decision here under review. In particular, I am satisfied that there was no breach of procedural fairness in the failure of the Minister to notify the applicant that he was seeking the advice of the Central Medical Board and to provide the applicant with an opportunity to make submissions, in person or in writing, to the Central Medical Board. The sole role of the Central Medical Board was to advise the Minister. The decision remained with the Minister on the basis of the advice that he received. That advice was provided to the applicant and the applicant was given a reasonable opportunity to respond to it.
REASONABLE APPREHENSION OF BIAS
[39] I am further satisfied that there was no basis for a reasonable apprehension of bias on the part of the Minister in redetermining his position following referral of the matter back to him by the Civil Aviation Tribunal. By statute, the Minister was the decision-maker and, on referral back, he, and no one else, was empowered and required by statute to act. The Minister could not delegate his decision-making responsibility other than to appropriate officials in his Department. On the other hand, the Minister did take the prudent step of seeking a further review by what would appear to be an appropriately qualified body, the Central Medical Board, which had not previously had any knowledge of, or involvement in, the processes surrounding consideration of renewal of the applicant"s medical certificate. I am satisfied that, against the test of:
What would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the Minister] whether consciously or unconsciously, would not decide fairly.15
there is simply no basis on which to find a reasonable apprehension of bias on the part of the Minister.
CONCLUSION
[40] In the result, this application for judicial review will be dismissed. Counsel for the Minister indicated at the close of the hearing on this matter that, if the Minister were successful, the Minister would not seek costs against the applicant. There will be no order as to costs.
_________________________
Judge
Ottawa, Ontario
July 29, 1999
__________________1 Respondent"s Record, page 203.
2 Applicant"s Record, page 61.
3 R.S.C. 1985, c. F-7 (as amended).
4 Canadian Aviation Regulations, SOR 96-433 (the "Regulations"), ss. 404.03 and 404.10.
5 An individual appointed by the Minister to conduct medical examinations of applicants for the issuance of renewal of medical certificate. The Regulations, s.s. 404.01(1).
6 Respondent"s Record, pp. 66 and 67.
7 Applicant"s Record, pages 27 to 30.
8 Applicant"s Record, page 32.
9 Applicant"s Record, pages 34 and 35.
10 For endorsement of the proposition that "Natural justice is but fairness writ large and juridically. It has been described as "fair play in action".", see Knight v. Indian Head School Division No. 19 [1990] 1 S.C.R. 653 at 682.
11 [1999] S.C.J. No. 39 (Q.L.).
12 [1985] 2 S.C.R. 643 at page 653.
14 R.S.C. c. A-2, as amended. See in particular subsection 6.71(1) and the definition "Canadian aviation document" in subsection 3(1).
15 See Committee for Justice and Liberty v. National Energy Board [1978] 1 S.C.R. 369 at page 394.