Ottawa, Ontario, April 27, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Minister of Transport refused to grant the Applicant’s application for renewal of his Aircraft Maintenance Engineer (AME) licence. The Minister originally refused to renew on the grounds of incompetence and that it was not in the public interest to renew the licence.
[2] An AME is a trained and licensed person who issues a “maintenance release” after maintenance or repair work is performed, certifying that the work has been performed correctly and in accordance with applicable regulations. An AME attests both as to the work performed and the safety of the aircraft. No aircraft may be operated unless it is certified as safe in accordance with the regulations.
[3] On appeal to the Transportation Appeals Tribunal of Canada (TATC/Tribunal), the Tribunal disagreed with the Minister’s conclusion and referred the matter back to the Minister for reconsideration.
[4] The reconsideration was conducted by a panel of three (3) officials within the same department and their recommendation upholding the Minister’s original decision was adopted by the Minister’s delegate on the grounds of public interest.
[5] This is the judicial review of the Minister’s decision through his delegate to uphold the Minister’s first decision not to renew the AME licence.
II. BACKGROUND
[6] The Applicant began working in the aircraft industry in 1987 in the area of aircraft repairs. He was issued an AME licence on December 18, 1998.
[7] Between 1997 and 1998, the company for which he worked committed aeronautics infractions for which it was assessed penalties under the Canadian Aviation Regulations (CARs).
[8] Subsequently the Applicant was alleged to have committed a number of infractions. His failure to properly calculate the weight and balance of an aircraft after repairs and new installations resulted in a two-day suspension. The aircraft’s weight and balance is the baseline from which safe loads to be carried are calculated.
[9] Between 2002 and 2004 another company in which he held an interest, Altima Aero Industries, had its AMO authority twice suspended and ultimately cancelled. An AMO (Approved Maintenance Organization) is an organization approved by Transport Canada to maintain aircraft and parts. An AMO is the umbrella under which an AME often works and it consists of both the AMEs and management. As an organization responsible for maintenance on commercial aircraft and specialized work, it holds its own licence.
[10] On May 22, 2004, the Applicant’s AME licence expired. He applied for its renewal on August 20, 2004 and the Minister refused to renew the licence on September 6, 2004.
[11] In this first decision (Renewal Decision), the Minister refused to renew the AME licence because (1) the Applicant was adjudged to be incompetent, and (2) it was not in the public interest to renew the licence.
[12] On the issue of incompetence, the Minister held that Bancarz had repeatedly demonstrated that he was not committed to complying with the CARs and standard practices. There was a pattern of non-compliance, misleading records and failures to meet minimum standards for safety. The Minister listed several examples of such behaviour including improper welding, failure to properly record weight and balance changes, incomplete/incorrect documentation and improper maintenance.
[13] On the issue of public interest, the Minister cited the same incidents as cited in respect of incompetence as well as several other incidents where the Applicant failed to record information in the technical log. Because maintenance records and sign-offs (maintenance releases) by AMEs are so critical to the history of an aircraft and confidence in the aircraft’s safety, Bancarz’s record of signing releases when standards had not been met justified a conclusion that it was not in the public interest to renew his AME licence despite his technical competence.
[14] Bancarz appealed the Minister’s decision to the TATC which conducted a hearing at which 12 witnesses gave testimony and Bancarz made representations.
[15] The TATC is a quasi-judicial tribunal composed of full-time and part-time members who have jurisdiction in respect of reviews and appeals made under federal jurisdiction governing air, rail and marine matters; generally of a safety or technical nature. The Tribunal collectively through the qualifications for appointment of its members by the Governor-in-Council has expertise in respect of matters over which it has jurisdiction.
[16] While the Tribunal’s process is adversarial and court-like, it is not bound by strict rules of evidence. It is required to provide reasons for its decisions. As a general rule, the Tribunal can either dismiss an appeal or refer the matter to the Minister for reconsideration.
[17] In this case the single member panel, consisting of the Chair of TATC, held that the Minister had not proved that Bancarz was incompetent because the Minister could not substantiate all of the alleged grounds against him. The Chair also held that in respect of the public interest, the Minister had failed to establish that Bancarz’s maintenance releases were unreliable or that Bancarz had demonstrated a record and pattern of unreliability.
[18] The TATC was particularly mindful that in other cases of a similar nature where there were unsubstantiated statements, incomplete explanations and sweeping statements in the Minister’s case, the Minister’s finding of incompetence was cushioned by the imposition of conditions for reinstatement of the licence. In Bancarz’s situation there are no conditions for reinstatement, a circumstance which provided little hope of him ever regaining his AME licence. The result is that the Minister’s decision is equal to the cancellation, not suspension, of his AME licence.
[19] The TATC recognized that not all work done by Bancarz was according to airworthiness standards; however, because of the history of mitigations and settlements accepted by Transport Canada, Transport Canada had failed to communicate its view of the gravity of the infractions until it refused to renew the AME licence. The Tribunal found that some evidence exonerated Bancarz in respect of some allegations and other evidence should not have been given such weight as to deprive Bancarz of ever acquiring an AME licence. The Tribunal concluded:
I am not convinced that the Minister has proved on a balance of probabilities that Mr. Bancarz, by reason of incompetence or because his record in relation to aviation justifies it, is to be refused reissue of his AME licence. ... The matter is referred back to the Minister for reconsideration of the decision to refuse to issue Mr. Bancarz’s AME licence.
[20] There is no legislated procedure for such a reconsideration. However, the Minister has a policy established in Civil Aviation Directive No. 34 (CAD 34). Pursuant to CAD 34 three “experts” were appointed to review the case and make a recommendation to the Minister’s delegate. The “experts” were not independent experts but senior officials in the aeronautics branch of Transport Canada.
[21] The Minister’s delegate, on December 23, 2005, advised the Applicant that this three-person panel had convened to review the case. Further, the Minister’s delegate advised Bancarz that having examined the TATC’s review decision and having examined the review panel’s deliberations/recommendation:
... it is my determination that the Minister’s decision to refuse to issue an Aircraft Maintenance Engineer (AME) Licence should be upheld pursuant to paragraph 6.71(1)(c) of the Aeronautics Act (on the grounds of public interest).
[22] Attached to the Minister’s delegate’s letter of December 23, 2005 was the review panel’s report. The panel concluded that the six (6) examples in the TATC review used in respect of both “Public Interest” and “Incompetence” were the same. The panel concluded that for ease of reference the six examples would be referred to under the “Public Interest” provision.
[23] The panel noted that the TATC had concluded that because Transport Canada had accepted reduced penalties, it indicated that the Minister did not consider the occurrences or infractions were of any consequence. The panel disagreed with that conclusion. As to other conflicts between the TATC and the panel’s conclusions, the panel speculated that it was because the evidence had not been presented at the TATC hearing in as clear or concise a manner as would be required.
[24] It was the panel’s view that its review was based on more comprehensive evidence than was before the TATC and that the panel conducted a more detailed analysis. The panel’s reconsideration did not include as part of its procedures the receipt of oral evidence and cross-examination as did the TATC’s process. The panel took into account more incidents than those which were before the TATC.
[25] The Applicant’s evidence was that the TATC informed him that the Minister’s reconsideration would in essence be a “rubber stamp” given the conclusions of the Tribunal. His evidence was also that early in the process an official contacted him about whether he had anything to add to the process. His response was basically that given the TATC’s result, he had nothing to respond to and that he could not afford counsel in any event. Whatever the circumstances, the Applicant had no involvement in the reconsideration process.
III. ISSUES
[26] The Applicant has framed the issues in the following order:
· was there a breach of procedural fairness?
· was there a reasonable apprehension of bias?
· was there sufficient evidence to conclude that it was in the public interest not to renew the Applicant’s licence?
· is the Applicant entitled to mandamus?
IV. ANALYSIS
A. Standard of Review
[27] The Respondent says that applying a pragmatic and functional analysis of the Minister’s decision, the standard of review is patent unreasonableness. This is based on the following:
· the statute is silent in respect of review, a neutral factor;
· the panel is replete with expertise indicating that considerable deference is owed;
· the purpose of the statute is the protection of the public and aviation safety indicating more deference; and
· the question is fact-based and discretionary in nature, again indicating more deference.
[28] In general terms, the Court agrees with this analysis; however, the standard of review depends on which question is being posed. The standard of review for fairness and bias is correctness. As some of the factual issues are dependent on industry and regulatory expertise (e.g. what is the level of inspection of a dent on a wing), those matters are clearly ones for considerable deference.
[29] This case, in respect of the facts and conclusions therefrom, is complicated by the fact that a body with expertise, TATC, whose role is to review Transport Canada’s actions, reached different conclusions on the same facts (and would on factual determination be entitled to a standard of patent unreasonableness if the matter was before this Court) and concluded that the Minister’s decision was in error. The standard of review in respect of those aspects of disagreement between the panel and the TATC should be resolved on a consideration of whether the panel has shown that its opposing decision to that of TATC is reasonable in this context.
[30] This application can be determined on the grounds of procedural fairness and the right to be heard.
B. Procedural Fairness
[31] The Applicant complains that he was misled by the TATC that the reconsideration would be a “rubber stamp”. Firstly, a reconsideration is not an automatic adoption of the TATC’s decision although one could expect that it would require significant circumstances to depart from the findings of an independent expert tribunal. Secondly, the TATC cannot speak for the Minister who has the ultimate authority in respect of the issuance of the type of licence at issue.
[32] The central flaw in the reconsideration process is that the Applicant never had a meaningful opportunity to address the findings of the review panel before the Minister’s delegate accepted the panel’s recommendation. In this regard this case is similar to this Court’s decision in Sierra Fox Inc. v. Canada (Minister of Transport), 2007 FC 129.
[33] It is no answer, as suggested by the Respondent, that the Applicant had an opportunity to participate in the review process when he was contacted by Transport Canada to determine if he had anything he wished to submit. At that time the Applicant had been successful before the TATC and it is hardly surprising that he had nothing to add at that time.
[34] The review panel then went on with its task, expanded the scope of the inquiry and then largely dismissed TATC’s conclusions without any further notice to the Applicant. The Applicant had a legitimate expectation that the review would be a reconsideration of the matters before the TATC, not a new inquiry.
[35] It is also no answer to the Applicant’s position to say that since the panel’s recommendations constitute the reasons for decision (because they were accepted by the Minister), therefore the Applicant has no right to comment on “reasons” before they are issued. The panel’s recommendations become “reasons” by default of any other reasons expressed by the Minister and are a presumption that the Minister adopts the reasoning in the panel’s recommendation. The Applicant had a right to be heard before the panel’s recommendations went to the Minister. The Minister has no answer to the issue of how the Applicant was to respond to the panel’s recommendations including new matters not put to the Tribunal or referred to in the Renewal Decision.
[36] The panel’s attempt to downplay the importance of an AME licence and therefore the effect of the decision on the Applicant is misplaced. The panel suggests that Bancarz can still work in the aviation industry but merely cannot sign-off on work. In oral submissions the Respondent repeated this challenge to the impact on Bancarz. The Respondent’s position is inconsistent with the importance to safety and the public interest on which it relies to support the Minister’s decision. If the AME licence was such a minor issue, it seems that Transport Canada went to extraordinary lengths to deal with such an insignificant difference between a person who can work on aircraft and a person who can sign-off that work.
[37] The reality is that an AME licence is important to the aviation system and to the individual licence holder. Its importance underscores the need for regulation and enforcement as well as the need for fair and proper consideration when the licence is to be taken away; either directly by suspension/cancellation or by failure to renew for serious grounds which has the effect of permanently depriving an individual of a previously held authorization.
[38] The Respondent owed the Applicant a high degree of procedural fairness which it failed to accord.
C. Bias
[39] The Applicant argues that there is bias (reasonably apprehended or actual) by virtue of composition of the panel members. All of the members are senior aviation officials in the very branch of government which made the decision not to renew.
[40] However, the reconsideration ordered is to be performed by the Minister. It is appropriate for that decision to be made by a delegate based upon inquiry by other experts. These experts do not necessarily have to be from outside government.
[41] However, having adopted this procedure and to avoid the appearance of bias, the panel and the Minister must give credence and deference to the TATC’s findings. It is not sufficient for a review panel to merely disagree with the TATC’s conclusions or the weight given to evidence by the TATC. To permit that type of conduct by such a panel would be to disregard the intent of Parliament in creating the TATC as an independent check on government decisions in the field of transportation licensing.
[42] A reconsideration is not a “rubber stamp” of the Minister’s original decision nor is it a licence for the Minister or his officials to proceed to find other grounds and circumstances upon which to support the original decision. It is to be a reconsideration of the matters upon which the Minister made the initial decision and upon the evidence before and the conclusions reached by the TATC. It does not permit the Minister’s officials to graze through the Applicant’s history in an attempt to justify, ex post facto, the initial decision.
[43] While there may not have been bias, the Minister’s review process was seriously flawed in respect of fairness and cannot be supported.
D. Public Interest Conclusion
[44] The public interest at issue in the Minister’s decision is the public interest in aviation safety. The Minister contends that two incidents tipped the scale in concluding that renewal of the AME licence was not in the public interest. The TATC assigned these events little or no significance.
[45] It is noteworthy that in the end, the Minister’s non-renewal decision could not be supported on grounds of “incompetence” but the same facts were relied upon to support the “public interest” conclusion.
[46] It is not for this Court to review the evidence and reach a conclusion on the merits of the Minister’s conclusion. In reaching its conclusion the Minister is entitled to look at a licensee’s entire record. In this instance the Minister had four infractions established, one in respect of an aircraft for which there was no penalty, two in respect of another aircraft and one in respect of a third aircraft. All of the penalties assessed were reasonably light given the powers of enforcement which the Minister has available.
[47] As the TATC noted, there have been no other cases where the Minister has refused to renew an AME licence. The TATC went on to consider cases where the Minister suspended or cancelled an AME licence or revoked some other aviation document, all of which involved more serious and repeated conduct than that of the Applicant.
[48] In these other cases, the number of incidents of infractions was much higher than Bancarz’s; for example, in Jensen v. Canada (Minister of Transport), [1997] C.A.T.D. No. 49, there were 65 contraventions over 30 years; in Spur Aviation Ltd. v. Canada (Minister of Transport), [1997] C.A.T.D. No. 24 (Jensen’s company), there were 100 incidents resulting in cancellation. In Marin v. Canada (Minister of Transport), [1995] C.A.T.D. No. 14, the Minister suspended Mr. Marin’s AME licence on grounds of incompetence based upon 15 major incidents. Despite the finding of incompetence, Marin was given an opportunity to re-qualify.
[49] Other cases such as Poole v. Canada (Minister of Transport), [2000] C.A.T.D. No. 55 and Lockhart v. Canada (Minister of Transport), [1999] C.A.T.D. No. 29, indicate that in this field of regulated activity there must be either numerous incidents or major incidents with clear evidence of wrongdoing to justify suspension or cancellation.
[50] The review panel’s conclusion was that, viewed collectively, the incidents show a pattern of unacceptable behaviour for which post remedial action has been ineffective. The decision does not, however, address the dichotomy between past cases and this one in terms of “public interest” or penalty.
[51] The Minister is not bound by these precedents, although they do impact on the “patent unreasonableness” or “reasonableness” of the Minister’s conclusion. The precedents do speak to the issue of remedy and the Minister’s failure to articulate the reason for the penalty (which does not allow for remedial steps or re-qualification procedures). In that regard, the Minister’s reasons are inadequate.
V. REMEDY
[52] The Applicant asks that this Court grant an order of mandamus to renew his AME licence. This is a case where the four criteria for mandamus described in Brown and Evans, Judicial Review of Administrative Action in Canada, (Toronto: Canvasback Publishing, 2000) have largely been made out. The Applicant has met the objective criteria for licence renewal, there is a duty owed to Bancarz, the Minister’s discretion could be said to be spent by virtue of an improper decision (see Burlock v. Dispensing Opticians of Nova Scotia, [1989] N.S.J. No. 45 (N.S.S.C.T.D.)) and there has been a demand and refusal.
[53] However, even if the four criteria for mandamus have been met, the Court has a discretion to grant this remedy, which it will not exercise in this instance. The Minister has a serious overriding obligation to public safety. Personal interests must give way, to some extent, to the regulatory environment particularly in respect of safety. While the Court has concerns that referring the matter back for a further reconsideration invites the inevitable result of confirmation of the original decision, the Court is satisfied that a properly performed reconsideration will result in a proper finding, properly based, and a sustainable remedy consistent with these reasons.
VI. CONCLUSION
[54] For these reasons, the remedy of mandamus is denied. The judicial review is allowed, the Minister’s decision is quashed and the matter of renewal of the Applicant’s AME licence is referred back to the Minister for a new reconsideration by a different panel (if that procedure is issued) and by a different delegate (if the Minister chooses to delegate the decision). The Applicant shall have his costs of this judicial review.
JUDGMENT
IT IS ORDERED THAT the application for judicial review is allowed, the Minister’s decision is quashed and the matter of renewal of the Applicant’s AME licence is referred back to the Minister for a new reconsideration by a different panel (if that procedure is used) and by a different delegate (if the Minister chooses to delegate the decision). The Applicant shall have his costs of this judicial review.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-122-06
STYLE OF CAUSE: ALVIN BANCARZ
and
MINISTER OF TRANSPORT
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: April 11, 2007
APPEARANCES:
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Mr. Anthony Schmit
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Ms. Christine Ashcroft
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SOLICITORS OF RECORD:
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CHOMICKI BARIL MAH LLP Barristers & Solicitors Edmonton, Alberta
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Edmonton, Alberta |