Date: 20020903
Docket: T-1173-01
Neutral citation: 2002 FCT 928
Ottawa, Ontario, Tuesday, the 3rd day of September 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
MILTON JAMES WOODS
Respondent
[1] A narrow issue is raised in this application for judicial review:
Does the Civil Aviation Tribunal have jurisdiction to review matters alleged to be contrary to subsection 7.3 of the Aeronautics Act, R.S.C. 1985, c. A-2 ("Act") when the Minister of Transport ("Minister") purports to suspend or cancel an aviation document on the ground that a person has acted contrary to subsection 7.3(1) of the Act?
[2] The Attorney General of Canada brings this application from the May 30, 2001 decision of the Appeal Panel of the Civil Aviation Tribunal ("Appeal Panel") which upheld the decision of the Civil Aviation Tribunal (sometimes the "Tribunal") that it does not have jurisdiction in that circumstance.
THE FACTS
[3] By notice of suspension dated October 1, 1999, the Minister suspended the pilot's licence of the respondent, Mr. Woods, pursuant to section 6.9 of the Act. The Minister alleged that Mr. Woods had committed eight offences under the Canadian Aviation Regulations and the Act. The two offences relevant to this proceeding are offences 5 and 6 contained in the notice of suspension. They are as follows:
Offence 5
Aeronautics Act section 7.3(1)(c), in that on or about December 5th and 6th, 1998, in Canada and The United States of America, you make [sic] a false entry in a record required to be kept with intent to mislead, namely that you operated aircraft Cessna Citation 550 aircraft, serial # 550-0100, bearing Canadian registration marks C-GNWM with only one pilot and then entered a name of a pilot in the journey log book when that pilot had not acted as a crew member.
Penalty: 90 Day Suspension
Offence 6
Aeronautics Act section 7.3(1)(c), in that between February 25th, 1999 and March 4th, 1999, at or near Richmond, British Columbia, you did make false entries in a record required under this Part to be kept with intent to mislead, namely that, you erased entries from company operational flight plans.
Penalty: 90 Day Suspension
[4] Mr. Woods applied to the Civil Aviation Tribunal for a review determination of his suspension. The review hearing of the Minister's decision was held in September before the vice-chair of the Civil Aviation Tribunal.
[5] The Tribunal rendered its decision in January 2001 deciding, among other things, that the Tribunal did not have jurisdiction to hear offences 5 and 6 because those offences were based upon allegations that Mr. Woods had acted contrary to paragraph 7.3(1)(c) of the Act. The Civil Aviation Tribunal found, in the alternative, that if it had erred with respect to the question of jurisdiction it would impose a 90-day suspension for offence 5 and dismiss offence 6.
[6] The Minister brought an appeal from the Civil Aviation Tribunal's decision to the three-member Appeal Panel, which heard the appeal in April 2001. The Appeal Panel dismissed the appeal, affirming the decision of the Civil Aviation Tribunal that the Tribunal did not have jurisdiction to hear offences under section 7.3 of the Act.
[7] Prior to the appeal hearing, the Appeal Panel denied the Attorney General's written requests and applications for an adjournment, and for the transcript of the review hearing before the Civil Aviation Tribunal to be provided to the Minister. The Appeal Panel also denied the Minister's application to provide it with written, rather than oral, submissions. The Appeal Panel did accept a written summary of oral argument at the hearing.
THE RELEVANT LEGISLATION
[8] The following provisions of the Aeronautics Act are relevant to this application:
| 6.8 In addition to any ground of suspension, cancellation or refusal of renewal referred to in sections 6.9 to 7.1, the Minister may suspend, cancel or refuse to renew a Canadian aviation document in such circumstances and on such grounds as the Governor in Council may by regulation prescribe.
6.9 (1) Where the Minister decides to suspend or cancel a Canadian aviation document on the grounds that the holder of the document or the owner or operator of any aircraft, airport or other facility in respect of which the document was issued has contravened any provision of this Part or any regulation or order made under this Part, the Minister shall by personal service or by registered or certified mail sent to the holder, owner or operator, as the case may be, at his latest known address notify the holder, owner or operator of that decision and of the effective date of the suspension or cancellation, but no suspension or cancellation shall take effect earlier than the date that is thirty days after the notice under this subsection is served or sent.
[...]
(3) Where the holder of a Canadian aviation document or the owner or operator of any aircraft, airport or other facility in respect of which a Canadian aviation document is issued who is affected by a decision of the Minister referred to in subsection (1) wishes to have the decision reviewed, he shall, on or before the date that is thirty days after the notice is served on or sent to him under that subsection or within such further time as the Tribunal, on application by the holder, owner or operator, may allow, in writing file with the Tribunal at the address set out in the notice a request for a review of the decision.
(7) At the time and place appointed under subsection (6) for the review of the decision, the member of the Tribunal assigned to conduct the review shall provide the Minister and the holder of the Canadian aviation document or the owner or operator affected by the decision, as the case may be, with a full opportunity consistent with procedural fairness and natural justice to present evidence and make representations in relation to the suspension or cancellation under review.
Prohibitions, Offences and Punishment
7.3 (1) No person shall (a) knowingly make any false representation for the purpose of obtaining a Canadian aviation document or any privilege accorded thereby; (b) wilfully destroy any document required under this Part to be kept; (c) make or cause to be made any false entry in a record required under this Part to be kept with intent to mislead or wilfully omit to make any entry in any such record; (d) wilfully obstruct any person who is performing duties under this Part; (e) except as authorized under this Part, wilfully operate or otherwise deal with an aircraft that has been detained under this Part;(f) wilfully do any act or thing in respect of which a Canadian aviation document is required except under and in accordance with the required document; or (g) wilfully do any act or thing in respect of which a Canadian aviation document is required where
(i) the document that has been issued in respect of that act or thing is suspended, or (ii) an order referred to in subsection 7.5(1) prohibits the person from doing that act or thing.
(2) Every person who contravenes subsection (1) is guilty of (a) an indictable offence; or (b) an offence punishable on summary conviction.
(3) Except as otherwise provided by this Part, every person who contravenes a provision of this Part or any regulation or order made under this Part is guilty of an offence punishable on summary conviction.
(4) An individual who is convicted of an offence under this Part punishable on summary conviction is liable to a fine not exceeding five thousand dollars and, in the case of an offence referred to in subsection (1), to imprisonment for a term not exceeding one year or to both fine and imprisonment.
7.4 (1) Where a person is convicted on indictment of an offence referred to in paragraph 7.3(1) (f) or (g) in relation to the operation of a commercial air service, the court may, in addition to any other punishment it may impose, order that any aircraft used in the commercial air service be forfeited and, on the making of such an order, the aircraft is forfeited to Her Majesty in right of Canada.
7.5 (1) Where a person is convicted of an offence under this Part, the court may, in addition to any other punishment it may impose, make an order
(a) where the person is the holder of a Canadian aviation document or is the owner or operator of any aircraft, airport or other facility in respect of which a Canadian aviation document was issued, prohibiting the person from doing any act or thing authorized by the document at all times while the document is in force or for such period or at such times and places as may be specified in the order; or (b) prohibiting the person from operating an aircraft or providing services essential to the operation of an aircraft for such period or at such times and places as may be specified in the order.
Procedure pertaining to certain Contraventions
7.6 (1) The Governor in Council may, by regulation, (a) designate any regulation or order made under this Part, in this section and in sections 7.7 to 8.2 referred to as a "designated provision", as a regulation or order the contravention of which may be dealt with under and in accordance with the procedure set out in sections 7.7 to 8.2; and (b) prescribe, in respect of a designated provision, the maximum amount payable in respect of a contravention of that provision, which amount shall not exceed (i) five thousand dollars, in the case of an individual, and (ii) twenty-five thousand dollars, in the case of a corporation.
(2) A person who contravenes a designated provision is guilty of an offence and liable to the punishment imposed in accordance with sections 7.7 to 8.2 and no proceedings against the person shall be taken by way of summary conviction.
8.5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention. |
6.8 En sus des motifs de suspension, d'annulation ou de refus de renouveler mentionnés aux articles 6.9 à 7.1, le ministre peut suspendre, annuler ou refuser de renouveler un document d'aviation canadien dans les circonstances et pour les motifs que le gouverneur en conseil peut fixer par règlement.
6.9 (1) Lorsqu'il décide de suspendre ou d'annuler un document d'aviation canadien parce que l'intéressé - titulaire du document ou propriétaire, exploitant ou utilisateur d'aéronefs, d'aéroports ou d'autres installations que vise le document - a contrevenu à la présente partie ou à ses textes d'application, le ministre expédie par courrier recommandé ou certifié à la dernière adresse connue de l'intéressé, ou par signification à personne, avis de la mesure et de la date de sa prise d'effet, laquelle ne peut survenir moins de trente jours après l'expédition ou la signification de l'avis.
[...]
(3) L'intéressé qui désire faire réviser la décision du ministre dépose une requête à cet effet auprès du Tribunal à l'adresse et pour la date limite indiquées dans l'avis, ou dans le délai supérieur éventuellement octroyé à sa demande par le Tribunal.
(7) À l'audition, le conseiller accorde au ministre et à l'intéressé toute possibilité de présenter leurs éléments de preuve et leurs observations sur la mesure attaquée conformément aux principes de l'équité procédurale et de la justice naturelle.
Interdiction, infractions et peines
7.3 (1) Il est interdit : a) de faire sciemment une fausse déclaration pour obtenir un document d'aviation canadien ou tout avantage qu'il octroie; b) de détruire délibérément un document dont la tenue est exigée sous le régime de la présente partie; c) de faire, ou faire faire, de fausses inscriptions dans les registres dont la tenue est exigée sous le régime de la présente partie, dans le dessein d'induire en erreur, ou d'omettre délibérément d'y faire une inscription; d) d'entraver délibérément l'action d'une personne exerçant ses fonctions sous le régime de la présente partie; e) sauf autorisation donnée en application de la présente partie, d'utiliser délibérément un aéronef retenu sous le régime de celle-ci, ou d'effectuer quelque opération se rapportant à cet aéronef; f) d'accomplir délibérément un acte ou chose pour lequel il faut un document d'aviation canadien sans en être titulaire ou en violation de ses termes; g) d'accomplir délibérément un acte ou chose pour lequel il faut un document d'aviation canadien :
(i) alors que le document est frappé de suspension, (ii) alors qu'une ordonnance rendue en vertu du paragraphe 7.5(1) l'interdit.
(2) Quiconque contrevient au paragraphe (1) est coupable d'une infraction punissable sur déclaration de culpabilité : a) soit par mise en accusation; b) soit par procédure sommaire.
(3) Sauf disposition contraire de la présente partie, quiconque contrevient à celle-ci ou à ses textes d'application est coupable d'une infraction punissable sur déclaration de culpabilité par procédure sommaire.
(4) La personne physique déclarée coupable d'une infraction à la présente partie ou à ses textes d'application punissable sur déclaration de culpabilité par procédure sommaire encourt une amende maximale de cinq mille dollars, et dans le cas d'une infraction visée au paragraphe (1), un emprisonnement maximal de un an et une amende maximale de cinq mille dollars, ou l'une de ces peines.
7.4 (1) Le tribunal qui a prononcé un verdict de culpabilité sur mise en accusation pour une infraction aux alinéas 7.3(1)f) ou g) relative à l'exploitation d'un service aérien commercial peut, en sus de toute autre sanction, ordonner la confiscation immédiate, au profit de Sa Majesté du chef du Canada, de tout aéronef affecté à cette exploitation.
7.5 (1) Quiconque est déclaré coupable d'une infraction à la présente partie ou à ses textes d'application peut, en sus de la sanction, se voir interdire, par ordonnance du tribunal saisi de la poursuite : a) s'il s'agit d'un titulaire de document d'aviation canadien, ou du propriétaire, de l'exploitant, de l'utilisateur d'un aéronef, d'un aéroport ou d'autres installations visés par un tel document, d'accomplir tout acte ou chose autorisé par le document pendant la durée de validité de celui-ci ou sous réserve des conditions de temps ou de lieu précisées; b) d'utiliser un aéronef ou de fournir des services essentiels à son utilisation sous réserve des conditions de temps ou de lieu précisées.
Procédure relative à certaines contraventions
7.6 (1) Le gouverneur en conseil peut, par règlement : a) désigner tout texte d'application de la présente partie, ci-après appelé au présent article et aux articles 7.7 à 8.2 "texte désigné", dont la transgression est traitée conformément à la procédure prévue à ces articles;
b) fixer le montant maximal - plafonné, dans le cas des personnes physiques, à cinq mille dollars et, dans le cas des personnes morales, à vingt-cinq mille dollars - à payer au titre d'une contravention à un texte désigné.
(2) Quiconque contrevient à un texte désigné commet une infraction et encourt la sanction prévue aux articles 7.7 à 8.2. Aucune poursuite ne peut être intentée contre lui par procédure sommaire.
8.5 Nul ne peut être reconnu coupable d'avoir contrevenu à la présente partie ou à ses textes d'application s'il a pris toutes les mesures nécessaires pour s'y conformer. |
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THE APPEAL PANEL'S DECISION
[9] After setting out the submissions of the parties and reviewing the effect of amendments to the Act made in 1995, in material part, the Appeal Panel wrote as follows:
We do not accept the aspect of the Minister's argument which asserts that the interpretation by the Member would render subsection 6.9(1) a nullity. We concur with the Member that the exceptions referred to in subsection 7.3(3) are intended to refer to subsection 7.3(2) (the hybrid offences) and to subsection 7.6(2) (the designated provisions). As well, subsection 7.6(2) states that the designated provisions must not be pursued in the courts as summary conviction offences.
Hence our review of the scheme of the legislation leads us to conclude that there are section 7.3 offences which must go to the courts and the 7.6 designated provisions offences which must not go to the courts and all the rest, according to the wording of subsection 7.3(3), will be classed as summary conviction offences.
As a practical matter, however, as more and more offences came to be listed in the Designated Provisions Regulations over the course of the next fifteen years, the majority of offences are now proceeded with administratively, that is by way of an assessed monetary penalty under section 7.6 or by way of suspension under section 6.9 because nowhere in the legislation is the Minister deterred from using a section 6.9 suspension for breach of a designated provision. In fact this issue has been pronounced upon judicially in the case of Canada (Attorney General) v. La Ronge Aviation Services Ltd. (F.C.A.).
It was clear from a review of the legislation by the Federal Court of Canada that nothing prevented the Minister from suspending a Canadian aviation document pursuant to section 6.9 of the Act for a breach of the Designated Provisions Regulations as that was the more severe penalty which the Minister reserved for more serious breaches of the designated provisions.
We do not find that the Minister can suspend a Canadian aviation document for breach of one of the offences listed in subsection 7.3(1) since that section provides to the Minister the option to use the indictable procedure where the prosecutor on the Minister's behalf decides that the case is a more serious matter than that warranted by a summary conviction offence. That is to say that the less serious and the more serious avenues are contained in section 7.3 itself. This interpretation is reinforced through the restrictive wording found in subsection 7.3(2). It is the view of this panel that any general application of the section 6.9 administrative suspension is cut down by the restrictive wording of subsection (2) as it applies to the offences listed in subsection (1) of section 7.3.
[...]
CONCLUSION
We the panel concur with the analysis set out in the review determination and see no reason to vary the decision at review. It is the view of the panel that the words of subsection 7.3(2) of the Act are clear and unambiguous and lend themselves to one interpretation only, that being to restrict the avenue of procedure available to the Minister in its pursuit of offences found in subsection (1) to be by way indictment or summary conviction. That much is clear. It is the view of the appeal panel that the offences found in subsection (1) cannot be pursued administratively under section 6.9 of the Act because that general administrative power is cut down or limited by the definite restriction contained in subsection 7.3(2) respecting offences contained in subsection 7.3(1). [footnotes omitted]
STANDARD OF REVIEW
[10] Relying upon the decision of Justice Tremblay-Lamer in Air Nunavut v. Canada (Minister of Transport), [2001] 1 F.C. 138 (T.D.) and upon the pragmatic and functional approach, the Minister says that the standard of review to be applied to the Appeal Panel's decision on the jurisdiction of the Civil Aviation Tribunal to hear these offences is correctness. Counsel for Mr. Woods agrees.
[11] I am satisfied that by application of the factors articulated in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, the standard of review is correctness. In particular, I have considered the importance of the question and its applicability to numerous future cases, and the relative lack of expertise of the Appeal Panel on questions of statutory interpretation.
[12] The Tribunal must make a correct interpretation of the Act on this issue and so, in this sense, the question goes to the jurisdiction of the Civil Aviation Tribunal. Therefore, the question must be answered correctly in order for the Tribunal to be acting intra vires. See: Pushpanathan, supra, at paragraph 28.
ANALYSIS
(a) The Question of Jurisdiction
[13] The Act confers on the Minister responsibility for the regulation of aeronautics and for supervision of all matters connected with aeronautics. With respect to the suspension, cancellation or refusal to renew aviation documents, section 6.8 of the Act provides:
In addition to any ground of suspension, cancellation or refusal of renewal referred to in sections 6.9 to 7.1, the Minister may suspend [...]
[14] Subsection 6.9(1) of the Act in turn speaks to the Minister deciding to suspend an aviation document on the ground that the holder of the document "has contravened any provision of this Part [...]". The reference to "this Part" is a reference to Part I of the Act.
[15] Subsection 7.3(1) of the Act is a provision falling within Part I of the Act. Prima facie, therefore, the combined effect of section 6.8, subsection 6.9(1) and subsection 7.3(1) of the Act is that the Minister may suspend a document for contravention of a matter proscribed in subsection 7.3(1) of the Act. It further follows that the Civil Aviation Tribunal has jurisdiction to review such decision.
[16] In order to conclude that there is no such jurisdiction, in the words of Justice Hugessen in Canada (Attorney General) v. La Ronge Aviation Services Ltd. (1998), 93 N.R. 234 (F.C.A.), "the question then becomes whether there is anything in the remainder of the statute to take [jurisdiction] away".
[17] The Civil Aviation Tribunal and the Appeal Panel found that apparent jurisdiction to be taken away by subsection 7.3(2) of the Act. For ease of reference that subsection is as follows:
(2) Every person who contravenes subsection (1) is guilty of
(a) an indictable offence; or
(b) an offence punishable on summary conviction.
[underlining added]
[18] It was the view of the Appeal Panel and the Civil Aviation Tribunal that the effect of this provision was to mandate that section 7.3 offences must go to the courts either by indictment or summarily. In the words of the Appeal Panel, again repeated for ease of reference:
Hence our review of the scheme of the legislation leads us to conclude that there are section 7.3 offences which must go to the courts and the 7.6 designated provisions offences which must not go to the courts and all the rest, according to the wording of subsection 7.3(3), will be classed as summary conviction offences.
[19] With respect, I cannot agree with that interpretation.
[20] While the parties each argued a purposive interpretation of the Act, I begin from the premise that the preferred approach to statutory interpretation is that set out by E.A. Driedger in Construction of Statutes (2nd ed. 1983), at page 87:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
See, for example, Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3 at paragraph 27 and the authorities cited therein.
[21] In looking at the provisions of Part I as a whole, I find the following of assistance.
[22] First, the combined effect of subsection 7.3(2), subsection 7.3(3) and subsection 7.6(2) is that every contravention of a provision of Part I is an offence. Contravention of a designated provision cannot lead to criminal prosecution either by indictment or by way of summary conviction. However, contravention of any provision other than a designated provision is punishable on summary conviction, except where subsection 7.3(1) is contravened and a decision is made to proceed by indictment.
[23] From this, I take that the mere fact that contravention of a provision may lead to judicial proceedings, either by indictment or by summary conviction, is not sufficient to take away from the wording of section 6.8 and section 6.9, and the plain meaning of those provisions that contravention of any provision of Part I may lead the Minister to decide to suspend a document. This in turn may lead to a review of that decision before the Civil Aviation Tribunal. To conclude otherwise would render the power of suspension all but nugatory, existing only in respect of contravention of a designated provision.
[24] The use of the word "or" in subsection 7.3(2) and the whole wording of the provision reflects that, where this conduct leads to judicial proceedings, there is an option as to whether the judicial proceedings are by indictment or summary conviction.
[25] Second, I find some assistance in subsection 7.6(2) which, again for ease of reference, is as follows:
(2) A person who contravenes a designated provision is guilty of an offence and liable to the punishment imposed in accordance with sections 7.7 to 8.2 and no proceedings against the person shall be taken by way of summary conviction.
[26] From this, I take that where it is Parliament's intent to confine the Minister to one mode of proceeding, in that case administrative but not judicial proceedings for a summary conviction offence, Parliament uses express wording. I infer from the absence of such limitation elsewhere in Part I that it was not Parliament's intent to restrict the options open to the Minister.
[27] Thus, on the plain and ordinary meaning of the words in subsection 6.9(1) which refers to suspension for contravention of any provision under Part I, the scheme of Part I and the broad responsibility and authority which Parliament conferred on the Minister in section 4 of the Act, I conclude that the Minister may suspend an aviation document for conduct which contravenes subsection 7.3(1) of the Act. It follows that the Tribunal may review that decision.
[28] Much argument was advanced, both in this Court and below, to the effect that if the "Minister decides to proceed criminally against a licence holder" the Minister must rely upon subsection 7.3 of the Act and proceed either by indictment or summarily in respect of offences listed in subsection 7.3(1). It was said that a proceeding under section 7.3 is not an administrative proceeding and that the wording of paragraph 7.3(1)(c) here in issue places this offence into the "full mens rea category".
[29] But, with respect, what that, in my view, fails to address is that the proceeding commenced by the Minister was not criminal. It was administrative, and so there was no requirement to commence proceedings in Court. The Minister imposed an administrative suspension under section 6.8 and section 6.9 of the Act, based upon a contravention of a provision of Part I of the Act, specifically paragraph 7.3(1)(c) which requires that a person not make or cause to be made with intent to mislead any false entry in a record required to be kept.
[30] The fact that it is an element of the proscribed conduct that it be done with intent to mislead is insufficient to make the conduct only reviewable in judicial proceeding commenced either summarily or by indictment. The existence of the requirement of mens rea, while present in offences which are criminal, does not by itself make conduct criminal in this sense that it is only reviewable in court proceedings.
[31] It was also argued that serious conduct of the type enumerated in subsection 7.3(1) should only be tried in a criminal court where specific procedural protections exist. However, those procedural protections are contextual and commensurate with the fact that prosecution, whether by indictment or summary proceeding, carries with it the potential for conviction, a fine and imprisonment in the case of contraventions of subsection 7.3(1). In comparison, the procedural protections before the Civil Aviation Tribunal are commensurate with the fact that they are administrative proceedings to cancel, suspend or not renew an aviation document.
[32] Mr. Woods also relied upon subsection 7.5(1) of the Act to argue that where the Minister proceeds with an offence under subsection 7.3(1) of the Act, it is subsection 7.5(1) and not section 6.9 which is, or should be, used to prohibit further use of a pilot's licence. However, the application of subsection 7.5(1) is not limited to an offence under subsection 7.3(1). In contrast to subsection 7.4(1) which confers upon a court the ability to order an aircraft to be forfeited where a person is "convicted on indictment of an offence", subsection 7.5(1) applies simply where a person is "convicted of an offence under this Part". Subsection 7.3(3) of the Act makes, subject to subsection 7.3(2) and subsection 7.6(2), any contravention of a provision under Part I an offence punishable on summary conviction. Thus, a court may impose a prohibition in connection with an offence punishable on summary conviction.
[33] Finally, the Civil Aviation Tribunal relied upon section 8.5 of the Act. For ease of reference that provision is:
8.5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.
[34] The Civil Aviation Tribunal in its comprehensive analysis wrote:
Although the wording of 6.9 seems broad enough to encompass 7.3, a comparison to another section with alike wording shows that it may not apply. Section 8.5, due diligence, also purports to apply to a contravention of "a provision of this Part or of any regulation or order made under this Part."
An analysis of the application of 8.5 shows that however broad the wording it cannot apply to every provision of the Part. In the second category of offences where no mens rea is required it is open to the accused to avoid liability by proving he took all reasonable care. The defence of due diligence would apply to all offences in that second category, but it cannot apply to offences in the first category, where mens rea is required.
[35] However, in my view, section 8.5 is not inconsistent with the interpretation that subsection 7.3(1) lists provisions the contravention of which may result in suspension under section 6.8 and subsection 6.9(1). If willful conduct of the nature captured in subsection 7.3(1) is made out there will be no question of due diligence. For example, knowingly making false entries with intent to mislead is wholly inconsistent with due diligence to prevent that contravention. Conversely, if due diligence to prevent any contravention was established, it is difficult to see how the required mens rea could be found.
[36] For these reasons, the decision of the Appeal Panel that the Civil Aviation Tribunal does not have jurisdiction to hear offences 5 and 6 set out in the notice of suspension is set aside.
(b) Procedural Fairness and Natural Justice
[37] The Attorney General on behalf of the Minister of Transport argues that his right to participate before the Civil Aviation Tribunal was breached when the Registrar of the Civil Aviation Tribunal set the date for the hearing before the Appeal Panel on a date not convenient to the Minister's representative, and by refusing to produce the transcript of proceedings before the Civil Aviation Tribunal.
[38] It was conceded, however, that no actual prejudice was suffered by the Minister and no specific relief is sought as a result of this conduct.
[39] As no prejudice was suffered, no relief is claimed on this ground, and the decision is being set aside, it is not necessary for me to consider whether the conduct complained of reached the level of a breach of procedural fairness or natural justice.
[40] It is sufficient to note that it is surprising that, in the absence of aggravating factors such as prior delay (which factors are not present here), a date would be set with knowledge that one of the parties is unavailable on that date. This is particularly so where the Minister's representative stated that he was available for the hearing on April 26 and April 27, 2001, and the hearing was set for April 19, 2001, because the panel was not available during the week of April 26. There is no evidence to explain why the matter was so urgent that it could not have been dealt with in May 2001, particularly where Mr. Woods was agreeable to accommodating the Minister's representative.
CONCLUSION AND COSTS
[41] The decision of the Appeal Panel of the Civil Aviation Tribunal dated May 30, 2001, is set aside. In that circumstance, Mr. Woods sought an order that the Tribunal be directed not to impose the suspension ordered with respect to offence 5. This was said to be appropriate in view of the length of time that has elapsed since the suspension was reviewed.
[42] Even if the Court has jurisdiction to make such order, which is by no means clear to me, I am not satisfied that such order is appropriate. The matter will therefore be remitted to the Tribunal for disposition in accordance with these reasons.
[43] The Minister seeks the costs of this proceeding.
[44] The evidence that Mr. Woods sought to admit offences 5 and 6 is unchallenged, but the Minister rejected that offer. It was the vice-chairman of the Civil Aviation Tribunal who raised the issue of the Tribunal's jurisdiction.
[45] While the Minister undoubtedly has a broader interest which necessitated the bringing of this application, in all of the circumstances in the exercise of my discretion, I do not consider it appropriate to award the costs of this proceeding against Mr. Woods. In coming to this decision, I have considered the result of this application, the settlement correspondence, and the public interest in having the proceeding litigated. Therefore, each side will bear their own costs.
ORDER
[46] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed and the decision of the Appeal Panel of the Civil Aviation Tribunal dated May 30, 2001, is hereby set aside. The matter is remitted to the Civil Aviation Tribunal for disposition in accordance with these reasons.
2. No costs are awarded to either party.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1173-01
STYLE OF CAUSE: AGC v. Milton James Woods
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 14, 2002
REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: September 3, 2002
APPEARANCES:
Mr. Dwight Stewart FOR RESPONDENT
Mr. Glenn Rosenfeld FOR APPLICANT
SOLICITORS OF RECORD:
Mr. Dwight Stewart FOR RESPONDENT
Miller, Thomson LLP
Vancouver, BC
Mr. Glenn Rosenfeld FOR APPLICANT
Department of Justice
Vancouver, BC