Decisions

CAT File No. Q-1661-02
MoT File No. NAP6504-P330204-31756

CIVIL AVIATION TRIBUNAL

BETWEEN:

France Trottier, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, s. 6.9, 7.3(1)(a)

Suspension, Medical Examination, Interim Order, False Representation, Canadian Aviation Document


Review Determination
Pierre Rivest


Decision: December 7, 1998

TRANSLATION

I am satisfied that the Applicant knowingly made a false representation during her medical examination of April 23, 1998. I confirm the Minister's decision to suspend her pilot licence for seven days. Said suspension will come into force on the fifteenth day following service of notice of this determination.

A Review Hearing on the above matter was held Wednesday, November 18, 1998 at 10:00 hours at the Federal Court of Canada in Montreal, Quebec. The witnesses were sworn in.

BACKGROUND

Pursuant to section 6.9 of the Aeronautics Act, the Applicant is alleged to have contravened paragraph 7.3(1)(a) of the said act on April 23, 1998.

Specifically, the Applicant, during her medical examination, allegedly made a false representation for the purpose of obtaining a Canadian aviation document by not informing the medical examiner of LASER surgery to both eyes performed October 9, 1997.

A suspension of her pilot licence for seven days was imposed.

At the beginning of the Review Hearing, before presenting evidence, the Respondent's representative submitted a document entitled "Agreed statement of facts of the parties" (Exhibit M-1). In this document, it is established at the outset that the allegation is based on paragraph 7.3(1)(a) of the Aeronautics Act, which was not mentioned in the notice. The other parts of this statement will be dealt with in the ensuing report.

THE LAW

Paragraph 7.3(1)(a) of the Aeronautics Act stipulates:

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;

THE FACTS

For the Minister (the Respondent)

The Respondent's representative called two witnesses, Dr. Claude Bélanger, the medical examiner who examined the Applicant, and Dr. François Dubé who appeared as an expert witness.

Since the point of this case is not to determine the medical state of the Applicant nor to determine the importance of the surgery performed on her, with all its consequences, but rather to determine whether there was or not a false representation during the medical examination, the Tribunal was primarily concerned with Dr. Bélanger's testimony.

The main points raised by Dr. Bélanger were the following:

  • During her medical examination, the Applicant did not report her LASER surgery (M-1, para. 2).
  • When a pilot goes in for a medical certificate renewal, the procedure followed by Dr. Bélanger's secretary (Ms. Lucie Roger—see statement on page 2, M-1) is always the same, that is to complete Part A of the "Civil Aviation Medical Examination Report" (Exhibit M-2), and have the pilot sign Part B of the form.
  • During the Applicant's eye examination, the witness did not notice that the Applicant was not wearing her contact lenses, which apparently should have been the case in light of the restriction indicated on her medical certificate, and information from her previous examination in 1997 (Exhibit M-3).
  • If he had been made aware of the LASER surgery, the witness would not have sent the Applicant's medical report to Transport Canada until other tests were submitted.

Under cross-examination, it was found that Dr. Bélanger uses two forms for the medical examination, one in which Part A is completed by the secretary and Part B remains blank, yet signed by the pilot in the presence of the secretary (M-2); a second form, unsigned, serves as a draft for the physician which is used to complete the first (signed) form that is then sent to Transport Canada.

The result of which is that the pilot signs a partially blank form, that is, that Part B of the final form is not completed by the medical examiner when it is signed. However, the examiner does inform the pilot of the results of the examination.

Therefore, a situation of trust must be established between the pilot and the physician.

  • Finally, the witness stated that when he knows the candidate, he asks a question on their general health. In this case, however, he is not certain he asked if there had been any changes since the last medical examination, but as far as he knows this question is always asked.

As explained above, I will not comment on Dr. Dubé's testimony.

Mr. Tamborriello concluded his evidence by entering document M-4, dated June 9, 1998, which consists of a note to Dr. Dubé informing him that the Applicant underwent LASER surgery and that she did not mention that fact to Transport Canada or to Dr. Bélanger during her examination of April 23, 1998.

Another document, Exhibit M-5, dated July 2, 1998 notifies the Applicant that she no longer meets the medical standards to exercise the privileges of her licence. It is this decision that the Applicant appealed, not to the Tribunal as suggested in the letter in question, but to Dr. Wallace, senior consultant for Transport Canada in Ottawa (M-1, para. 7).

For France Trottier (the Applicant)

The first witness, Rita Hanan, pilot, merely confirmed the procedures followed by Dr. Bélanger during medical examinations. She also confirmed that the health questions are of a general nature, and that Dr. Bélanger does not explicitly inquire if the candidate consulted another physician since the last medical examination. However, Part A of the examination form is completed by the secretary and Part B, left blank, is signed in front of her. The pilot's medical certificate is then attached to the form for the medical examiner.

The second witness, Nicolas Charette, is the chief pilot for Avionair who hired the Applicant in October 1997. After having verified her medical certificate, he confirmed that she told him she underwent LASER surgery in both eyes. He did not feel it necessary to question her any further on this matter because the Applicant had a valid medical certificate.

Mr. Jenner, the representative of Ms. Trottier, then had the Applicant testify. The following points were raised:

  • At the beginning of October 1997, the Applicant consulted Dr. Michel Pop, an ophthalmologist.
  • She indicated to Dr. Pop that she was a commercial pilot, and asked him if LASER surgery (photorefractive keratectomy) would likely create any problems; Dr. Pop answered no, and that she would be able to work four days after the surgery (M-1, para. 5). Dr. Pop even added that it was not necessary to inform Transport Canada (M-1, para. 6).
  • The Applicant confirmed that she signed the blank form in Dr. Bélanger's office, without having read it, and that the doctor asked general health questions, but he never asked if she had consulted another physician.
  • She also confirmed the testimony given by Nicolas Charette. She added that during a conversation with M. Tamborriello on July 13, 1998, she informed him of her LASER surgery.
  • However, meanwhile, she had already received a letter, dated June 23 and signed by Dr. Dubé of Transport Canada, in which her medical certificate was suspended until Dr. Pop could provide him a report on the results of the surgery. This letter was not submitted in evidence.

Subsequently, in light of her difficulties in getting a response from Dr. Dubé, she appealed directly to Dr. Wallace, the senior consultant for Transport Canada in Ottawa, who provided authorization to fly that same day (M-1, para. 7).

Under cross-examination, the Respondent's representative primarily aimed at testing the Applicant's credibility by showing that she possessed sufficient qualifications to know what she was doing, and that she knowingly did not inform Dr. Bélanger of her surgery for fear of being without work for a prolonged period of time (up to six months).

The Applicant reaffirmed that Dr. Bélanger did not ask her if there had been any changes in her health status since her last medical examination.

However, her medical certificate apparently indicates the requirement to wear spectacles or contact lenses. Yet, during her medical examination with Dr. Bélanger the Applicant was not wearing spectacles and did not tell the doctor that she was not wearing her contact lenses. The Applicant did not see the necessity because Dr. Pop had told her it was not necessary to inform Transport Canada of her new health status.

Finally, the Applicant affirms that after her surgery, she did not know that there could be a six-month suspension of her medical certificate. It was only later, in December 1997, that she learned of the possibility while reading an article in a magazine.

ARGUMENT

For the Respondent

Mr. Tamborriello's argument may be summed up as follows:

  • The fact that the Applicant did not declare her LASER surgery to Dr. Bélanger constitutes a false representation.
  • The fact that the Applicant's medical certificate had a restriction, namely that glasses or contact lenses must be worn, and that during the medical examination the Applicant was not wearing any, and did not mention it, also amounts to a false representation.
  • Given the knowledge and the experience of the Applicant as a commercial pilot, flight instructor, "Designated Flight Test Examiner" (DFTE), board member of AQTA (Association québecoise des transporteurs aériens inc.), and given her fear of having her licence suspended and not being able to fly for six months, this gives the omission or false representation the character of a voluntary act committed knowingly. Mr. Tamborriello supports his allegations on the review determination in the case of Richard Whitney Bailey vs. Minister of Transport[1]. In its conclusion the Tribunal declares (Exhibit M-6, page 5, paragraphs 1, 2 and 3):

In summary, I am satisfied that the Airworthiness Inspector was correct in his assessment that this Cessna 185 required the replacement of its circuit breakers. I am further satisfied the Applicant was aware that prior to the writing of his letter of June 3, 1991, Transport Canada would not issue a C. of A. until such time as the authorities were satisfied that the circuit breakers had been replaced. Further, I am satisfied that the letter of June 3, 1991, was written by the Applicant with a view to satisfy the condition imposed by Treleaven for its issuance.

Bailey knew that, in submitting the handwritten letter to Transport Canada stating that the requirements for AMA 571/207, Para (9) had been met in regard to the circuit breakers and switches, he made a false representation.

On the basis of my findings of fact, I conclude that the Applicant knowingly made the false representation for the purpose of obtaining a Canadian aviation document, and has therefore contravened paragraph 7.3(1)(a) of the Aeronautics Act.

  • As for Dr. Michel Pop, his responsibility is to inform Transport Canada if he sees fit to do so; that he did not, is another matter; the Applicant for her part had the obligation to declare to Dr. Bélanger that she no longer wore contact lenses as a result of LASER surgery.
  • He finished by saying that if the period of time required before flying again after having such surgery is normally six months, then the Tribunal should increase the penalty to a six-month suspension.

For the Applicant

Mr. Jenner refers to the following facts:

  • It was up to Dr. Michel Pop to inform Transport Canada. He refers to subsection 6.5(1) of the Aeronautics Act:

6.5 (1) Where a physician or an optometrist believes on reasonable grounds that a patient is a flight crew member, an air traffic controller or other holder of a Canadian aviation document that imposes standards of medical or optometric fitness, the physician or optometrist shall, if in his opinion the patient has a medical or optometric condition that is likely to constitute a hazard to aviation safety, inform a medical adviser designated by the Minister forthwith of that opinion and the reasons therefor.

It seams that Dr. Pop was not of the opinion that the Applicant's state was likely to constitute a hazard to aviation safety.

As for subsection 6.5(2) of the Act, also cited, the Applicant informed Dr. Pop that she was a commercial pilot (M-1, para. 4):

(2) The holder of a Canadian aviation document that imposes standards of medical or optometric fitness shall, prior to any medical or optometric examination of his person by a physician or optometrist, advise the physician or optometrist that he is the holder of such a document.

  • The ophthalmologist's conclusion is that the Applicant could return to piloting activities four days after the surgery (M-1, para. 6).
  • The Applicant has shown an honest disposition as she stated to Dr. Pop that she was a pilot, and she informed her employer as well as the Transport Canada representative, Mr. Tamborriello, that she had undergone LASER surgery.
  • As well, the question of not being authorized to fly for six months after the surgery is not proven, at least not according to current regulations. Subsection 424.17(3) of the Canadian Aviation Regulations does not mention it. (See however the note on page 26 of the table that follows the section in question: "NOTE: 'Correcting lenses' shall be interpreted to mean spectacles or contact lenses. Contact lenses shall not be approved prior to six months trial wear." May it be concluded that the contrary is equally true?
  • In paragraph 7.3(1)a) of the Aeronautics Act, the expression "knowingly" is very important. Yet, nothing in the evidence brought forward by the Respondent proves any act committed knowingly. The fact that there is a signed blank form does not prove the will to make a false representation, not any more than that there was negligence or lack of thoroughness; because the Applicant proved that it was routine for Dr. Bélanger to proceed in such a way, and that mutual trust had long been established between the physician and the pilots.
  • As for the important question of knowing whether the Applicant's health status had changed since her last medical examination, Mr. Jenner submits that the Respondent did not clearly prove whether the question had been asked or not. As well, given that the surgery had been performed seven months earlier and that the Applicant was well, it did not occur to her to declare the surgery, especially if a precise question was not put to her. It was up to Dr. Bélanger to be clearer on the previous health status of the Applicant. Hence the conclusion that there had been no intent to make a false representation and that there was no maliciousness on the part of the Applicant, nor any careless attitude.
  • To prove his allegations, Mr. Jenner cited several articles and extracts of criminal law taken from a document entitled TRAITÉ DE DROIT PÉNAL CANADIEN[2], where the notion of "mens rea" is described, namely to cause prejudice or to violate a statute "in a guilty mind," with "the intent to commit the act."
  • Finally, to find guilt, the accuser must show that the accused is aware of what is being reproached. In this case, it is not up to the Applicant to know the importance of the surgery she has undergone, but up to the physician performing the surgery. Dr. Pop told her that it was not necessary to inform Transport Canada, from which the Applicant concluded that it was not necessary to mention it to Dr. Bélanger.

ANALYSIS AND CONCLUSION

Since this is a matter of strict liability, it is known that it is up to the Minister to prove, on a balance of probabilities, that the fault lies with the holder of a Canadian aviation document. Furthermore, in this case, a distinction must also be made between the purely medical aspect of the person (her physical condition after having undergone LASER surgery), and the false representation relating to that surgery. It is only the latter part of the issue that we must address. Finally, it is important to know if the Applicant had really been asked if she had seen a physician since her last aviation medical examination.

Therefore, what is the basis for the Minister's proof to declare that the Applicant knowingly made a false representation during her medical examination on April 23, 1998?

  1. First, upon the statement of Dr. Bélanger who allegedly always asks if there have been any changes in the pilot's health since the last medical examination.
  2. Then, on the fact that the medical certificate of the Applicant had a restriction indicating that glasses or contact lenses must be worn and, that at the time of the medical examination of April 23, 1998, the Applicant was not wearing glasses or contact lenses.
  3. And, finally, on the fact that the knowledge and experience of the Applicant, in spite of Dr. Pop's statement not to inform Transport Canada of the surgery, are above those of the average pilot and that the Applicant should be treated as such, and that she knowingly did not declare her medical situation during her examination with Dr. Bélanger. An appreciation of due diligence must therefore be made in regard to the qualifications and the experience of the person involved and cannot in this case excuse the Applicant even if the surgery did take place seven months earlier (see Noël Parent vs. Minister of Transport[3], where in review as well as in appeal, the Tribunal accepted the notion of evaluating the Applicant's behaviour).

For his part, Mr. Jenner submitted that the Applicant did not have to mention her eye surgery if the question had not been put to her, and that there was no blameworthy intent on her part in not mentioning anything about the surgery.

After analysing the facts, I have come to the following conclusions:

  1. Dr. Bélanger's testimony does not seem to be conclusive evidence of whether he did or did not ask the question of there having been any "change in the health" of the pilot. Rather, it is the statement made by Mrs. Lucie Roger, the physician's secretary (M-1, 2nd page, para. 6), that answers this question by affirming that she asks if there have been "any changes in health." For their part, the witnesses Hanan and Trottier are vague on this subject. This statement is part of the "Agreed statement of facts of the parties" (M-1) and it was not questioned during the Review Hearing. I therefore conclude that the question was asked.

    Furthermore, on the seventh line of the medical examination form (M-2), the following question is asked: "Have you consulted a physician since your last aviation medical examination?" On the report of 1998 (M-2), just as on the report of 1997 (M-3), there is no answer. In the same box, it says "If yes, give reason." Since there is nothing noted, I conclude that the Applicant answered no to this question and did so in front of the secretary, Mrs. Roger (M-1, page 2), which constitutes a false representation.
  2. As for the wearing of glasses or contact lenses as required by the Applicant's medical certificate, the fact that she did not meet this requirement, at least without approval, constitutes another error. I admit that this requirement applies only to piloting and does not apply in other situations. However, the medical examination of a pilot is conducted in the pursuit of obtaining or maintaining a licence to fly an aircraft. The conditions on the medical certificate must therefore be shown during the said examination. If, for example, a pilot was obliged to wear a prosthesis on a leg to pilot an aircraft, there would be no fault if the prosthesis were not worn in circumstances other than flying, but during the examination, in order to renew a medical certificate, it is normal to think that the prosthesis would have to be worn to show that it works correctly.

    It is worth noting that the medical certificate was not presented as evidence in the Review Hearing but was not contested by the Applicant, either.
  3. There remains the question of knowing whether the Applicant "knowingly" made the false representation. I think yes. Maliciously or perniciously? No, but consciously enough to state that it was done in a "blameworthy" manner. Especially since anything relating to the eyes is of capital importance in every normal human being, and is never treated with indifference. This is especially true for a pilot for whom visual acuity is fundamental. The fact that the Applicant knew that she could now throw away her contact lenses is certainly not insignificant and easily forgotten, even seven months after the surgery.

    The Applicant's only excuse would be that Dr. Pop told her it was not necessary to report the fact to Transport Canada. However, that concerned Dr. Pop, and not the pilot who during the examination to renew her medical certificate should have answered yes to the question: "Have you consulted a physician since your last aviation medical examination?"

DETERMINATION

I am satisfied that the Applicant knowingly made a false representation during her medical examination of April 23, 1998, and I confirm the Minister's decision to suspend her pilot licence for seven days.

Pierre Rivest
Member
Civil Aviation Tribunal


[1] CAT File No. O-0318-04.

th 4 Edition, Les éditions Yvon Blais inc., pages 373 to 409.

[3] File no. Q-1191-02


Appeal decision
Faye H. Smith, Michel G. Boulianne, Michel Larose


Decision: June 17, 1999

TRANSLATION

The appeal is dismissed. The appeal panel confirms the suspension of seven days imposed by the Minister of Transport. Said suspension shall come into force on the fifteenth day following service of this determination.

An appeal hearing on the above matter was held Thursday, February 18, 1999 at 10:00 hours at the Quebec Municipal Commission, in Quebec City, Quebec.

BACKGROUND

The Appellant is appealing the determination of Tribunal Member Pierre Rivest, following a request for review made by Mrs. France Trottier. The Minister of Transport had decided to suspend the airline transport pilot licence—aeroplane of France Trottier for a period of seven days as a result of a contravention of subsection 7.3(1) of the Aeronautics Act.

GROUNDS FOR APPEAL

At review, the Tribunal Member confirmed the Minister of Transport's decision and confirmed the suspension of seven days imposed by the Minister. The Appellant, through her representative, Mr. Brian Jenner, President and General Director of the AQTA, requested that this determination be set aside on the following grounds which form part of the request for appeal filed with the Tribunal December 21, 1998:

  1. Error in the assessment of the evidence regarding the statement made by Mrs. Lucie Roger who, according to the Member, was not challenged during the hearing whereas the evidence showed to the contrary that this statement was contradicted by three witnesses.
  2. Error in the assessment of the evidence when the Member concluded that the Applicant allegedly answered "no" to the question: "Have you consulted a physician since your last aviation medical examination?" whereas the evidence showed that she was never asked that question and that the Applicant was not aware of the contents of the medical examination form (M-2) before signing it.
  3. Error on the part of the Member who shifted the responsibility of the physician to the pilot when he states on page 9 of his determination that 'the conditions on the medical certificate must therefore be shown during the said examination' while, on the contrary, this is the responsibility of the medical examiner who must ensure that the medical standards are met by the pilot during the examination.
  4. Error of law regarding the interpretation of paragraph 7.3(1)(a) of the Aeronautics Act by the Member who ignored the Minister's obligation to prove each of the three essential elements of the offence, which are:

(a) whether or not there was any false representation;

(b) the fact that the false representation was keeping the document holder from losing her Canadian aviation document; and that

(c) the document holder knew for a fact that, by making the false representation, she was avoiding the loss of her privileges;

whereas, on the contrary, the evidence showed that if Transport Canada had received the information which the Applicant is alleged not to have given, the privileges accorded by the Canadian aviation document would still have been renewed.

The Applicant reserves the right to raise any other grounds that might be revealed in the transcript of the hearing.

THE EVIDENCE

The parties admitted the following facts in a statement filed as Exhibit M-1 at the outset of the appeal hearing. On April 23, 1998, during her medical examination with Dr. Claude Bélanger, medical examiner for Transport Canada, Mrs. Trottier did not advise him of the fact that she had undergone laser surgery on both eyes October 9, 1997. During this medical examination on April 23, 1998, Mrs. Trottier knew that photorefractive keratectomy would likely lead to a suspension of the medical certificate for a period of six months. Consequently, the Minister of Transport submitted that Mrs. Trottier allegedly made a false representation for the purpose of obtaining a Canadian aviation document by not informing the medical examiner of the laser surgery on both eyes performed October 9, 1997. On August 28, 1998, the Minister of Transport suspended Mrs. Trottier's airline transport pilot licence for a period of seven days.

THE LAW

Paragraph 7.3(1)(a) of the Aeronautics Act states:

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;

SUBMISSIONS OF THE PARTIES REGARDING THE ISSUES

1. Error in the assessment of the evidence regarding the statement made by Mrs. Lucie Roger who, according to the Member, was not challenged during the hearing whereas the evidence showed to the contrary that this statement was contradicted by three witnesses.

According to the Appellant's representative, the Minister of Transport has not proved his case. He referred to page 407 of the article submitted at review[1], in which the following citation can be found:

The Supreme Court reiterated, in the case of R. v. Jacquard, that 'wilful' means that the person gave careful consideration to their action, thought it over and contemplated the consequences. (translation)

He said that on page 385 of the article, carelessness is excluded; therefore, Mrs. Trottier could not be found to have acted "knowingly" in a case of negligence. Negligence is not sufficient to show that she acted "knowingly." And, on page 309, it is required to establish a causal connection between the behaviour of the accused and the prohibited result. To determine if there is a causal connection, one must ask if the conduct in question contributed to the result or if it is an integral part of the offence or, in other words, if the final result would have been the same without this behaviour.[2] The Appellant's representative concluded that it is up to the Minister to prove false representation — for the purpose of obtaining the document — with a guilty mind.

For his part, the Minister said that Exhibit M-1, which consists of an "Agreed statement of facts of the parties," mentions in paragraph 8, "The statement made by Mrs. Lucie Roger is accepted in its entirety." This statement was filed as the second page, following the statement of facts of the parties, as Exhibit M-1. In her statement, Mrs. Roger, Dr. Bélanger's secretary, stated that when receiving a pilot, she asks if there are any changes in their health.

The Minister concluded that by having signed this statement, the Appellant admits that Dr. Bélanger's secretary asks pilots who arrive for a medical examination if there have been any changes in their health. We can therefore say that, to her knowledge, this question is asked and that it was asked during her medical examination on April 23, 1998.

The Minister's representative said that the testimonial evidence provided during the review hearing does not show, on a balance of probabilities, that the statement made by Mrs. Roger was contradicted.

The appeal panel agrees with the Minister's submission to the effect that the evidence shows that in fact a general question regarding health is asked by Mrs. Roger or Dr. Bélanger. This is what Dr. Bélanger mentions on pages 26 and 27 of the review hearing transcript:

I did not ask any specific questions. I simply asked what I ask my regular clients which is whether there have been any changes since the last medical and the answer was no, because if it had been yes, I would have noted it.

I did not ask any specific questions. I did not ask France if she had a headache, if she was suffering from epilepsy, if she had allergies or anything else. We know about everything she does. We know her and we have known about her file for a long time. All I asked her was if there have been any changes since the last medical and she answered that there have not been any changes because if she had told me there were, obviously I would have noted it.

We dismiss the first ground for appeal.

2. Error in the assessment of the evidence when the Member concluded that the Applicant allegedly answered "no" to the question: "Have you consulted a physician since your last aviation medical examination?" Whereas the evidence showed that she was never asked that question and that the Applicant was not aware of the contents of the medical examination form (M-2) before signing it.

The Appellant's representative referred to page 8 of the Review Determination, to the last paragraph, in which Mr. Rivest said:

Furthermore, on the seventh line of the medical examination form (M-2), the following question is asked: 'Have you consulted a physician since your last aviation medical examination?' On the report of 1998 (M-2), just as on the report of 1997 (M-3), there is no answer. In the same box, it says 'If yes, give reason.' Since there is nothing noted, I conclude that the Applicant answered no to this question and did so in front of the secretary, Mrs. Roger (M-1, page 2), which constitutes a false representation.

He said that Mr. Rivest concluded "no," but if we compare this with Exhibit M-1, Mrs. Roger's statement — "ask if there have been any changes in health," we feel that coming to such a conclusion is quite a stretch. The Appellant admitted that Mrs. Roger said that, but not that it is not disputed.

He suggested that it is unreasonable for Mr. Rivest to make the determination he made because of the fact that it is the Minister who must prove that a false representation was made. In addition, the Minister must prove that Mrs. Trottier had the intent. In other words, she must have lied, and the fact that she did not say anything is not her fault.

The Minister's representative submitted that in the Civil Aviation Medical Examination Report of April 23, 1998 (M-2), we can see that in Part A of the form, in response to the question: "Have you consulted a physician since your last aviation medical examination?" nothing is entered. And in Part B of the same form, in response to the question: "List injuries, operations, serious illnesses and dates" there is no mention of the Appellant having undergone laser surgery.

It is therefore reasonable that the Member, during the review hearing, deduced that since nothing was entered in response to the question: "Have you consulted a physician since your last aviation medical examination?" in Part A of the form, it clearly indicated that the Appellant did not inform Mrs. Roger or Dr. Bélanger of her laser surgery and that this, in and of itself, constitutes a false representation.

The Minister's representative once again referred to the last paragraph on page 8 of Mr. Rivest's determination where he concluded that the Applicant answered no to this question.

However, the Appellant admits in her testimony that she remembered about her laser surgery during her medical examination with Dr. Bélanger (page 119 of the transcript):

(Mr. Tamborriello)

Q. Yes, but, did you remember, at that time, on that date, that you had laser surgery?

A. Yes

Q. And why did you not inform Dr. Bélanger that you had just had laser surgery?

A. Well, because I wasn't asked. I wasn't asked any questions. I did that to improve my own health. I have no illness to hide, nothing.

During his analysis, the Minister made the following comments: "Why did the Appellant wait to be asked a specific question about her vision? Why did she not feel the need to inform Dr. Bélanger when he examined her eyes? She knew for a fact that Dr. Bélanger believed she was wearing her contact lenses during the examination because her sight was 20/20. In fact, Dr. Bélanger was under the impression that the Appellant's eyesight was 20/60 without corrective lenses. Therefore, he relied on the results from the previous year and on the fact that the Appellant's medical certificate contains a restriction about wearing glasses or contact lenses. He could not guess that her 20/20 eyesight was due to laser correction.

On pages 14 and 15 of the transcript, Dr. Bélanger states:

Well, I conducted a standard examination as we always have with Mrs. Trottier. The examination is done at 20 feet from a card and she sees the card very well, one hundred percent, as has been the case for many years. I am not at all concerned about her ability to fly an aeroplane. She sees perfectly with her contact lenses, which I thought she was wearing at that time. She wasn't wearing them though, but I didn't know that.

I might have been able to notice at some point during the examination, but I was not paying attention to that personally. Sometimes it's difficult to tell if people are wearing contact lenses or not. And, in any case, I did not notice during the examination and I signed her medical as usual, telling her that she must wear contact lenses or glasses to fly.

The Minister's representative concluded: The fact that Dr. Bélanger also wrote at the bottom of the first page of the medical report (M-2) "L. C. or G. W." (lentilles cornéennes or glasses worn) indicates that he was under the impression that the Appellant must still be meeting these conditions to have 20/20 eyesight.

This ground is also dismissed by the panel because in our opinion even if the Appellant did not read the form before signing it, the evidence shows that she was asked if there had been any changes to her health. Furthermore, the answers given by the Appellant on page 119 above show that she was aware of her surgery and the fact that the conditions or restrictions of her licence no longer applied.

3. Error on the part of the Member who shifted the responsibility of the physician to the pilot when he states on page 9 of his determination that "the conditions on the medical certificate must therefore be shown during the said examination" while, on the contrary, this is the responsibility of the medical examiner who must ensure that the medical standards are met by the pilot during the examination.

Mrs. Trottier's agent went through a detailed review of the procedure used by Dr. Bélanger to determine exactly what she signed when she signed the form.

On page 25 of the transcript, Dr. Bélanger said:

No, absolutely not, we have seen Ms. France in the office for 15 years or 15 times, we know the routine, when she is told, nothing has changed, you sign here, good, to have nothing marked on the document, she signs a blank form, she trusts us, we trust her, she has been a client for a long time and there is no problem with that.

She knows very well that I would not write that she has something very serious and that she is unfit to fly, she trusts me just like I trust her.

Q. Absolutely.

A. So she must tell me about important things that have happened to her; if she doesn't tell me about them, I cannot do anything, I cannot guess; I cannot play detective with every client that comes to see me.

The agent submits that we cannot infer negligent intent. On page 97 of the transcript, Mrs. Trottier provided the following answers:

When you went to Dr. Bélanger in April 98, did you sign a form like this one, a Civil Aviation Medical Examination Report?

A. Affirmative.

Q. Did you read it before signing it?

A. No.

Q. Before signing this report, were you asked the question: "Have you consulted a physician since your last aviation medical examination?"

A. No.

The Minister referred to paragraph 2 on page 9 of the Member's Review Determination and provided the following analysis:

For the issuance or renewal of a medical certificate, which is required for pilot licensing[3], a person shall undergo a medical examination in accordance with the Personnel Licensing and Training Standards. In the case of the Appellant, this was a renewal of her medical certificate on which it is stipulated as a condition of exercising her privileges that "contact lenses must be worn."

When the Member indicated that "the conditions on the medical certificate must therefore be shown during the said examination," he simply indicated that the responsibility of the Appellant consists of informing the medical examiner of the fact she is wearing her contact lenses for the purpose of the eye examination. The responsibility of the medical examiner is to be able to determine if wearing contact lenses provides excellent vision and satisfies the conditions of the medical certificate.

In this case, the responsibility of the Appellant was to inform the medical examiner of the fact that she had excellent vision without having to wear her contact lenses because she underwent laser surgery. The responsibility of the medical examiner would then have been to ensure that the Appellant could actually see properly without her contact lenses and to ask the Appellant for a report from the ophthalmologist.

It was on the basis of previous examinations that Dr. Bélanger believed that the Appellant was wearing her contact lenses during the examination of April 23, 1998. It was not because the Appellant told him that she was wearing her contact lenses. On the contrary, the Appellant was not wearing contact lenses during the examination. Thus, she misled Dr. Bélanger by letting him believe she was wearing them.

She had the duty to inform the doctor that she had undergone laser surgery. She underwent the examination with full knowledge of her 20/20 vision, and that means acting knowingly.

We agree with the Appellant's submission that the medical examiner must ensure that the medical standards are met by the pilot during the examination. However, it is the pilot's duty to provide the relevant information to the medical examiner. The Minister is correct in submitting that if the condition for exercising her privileges requiring that "contact lenses must be worn" no longer applied because of laser surgery, it is up to the Appellant to inform the medical examiner of this fact so that he can inform the Minister of this change in his medical examination report.

In our opinion, the Member did not err in his interpretation of this responsibility and we dismiss this ground.

4. Error of law regarding the interpretation of paragraph 7.3(1)(a) of the Aeronautics Act by the Member who ignored the Minister's obligation to prove each of the three essential elements of the offence, which are:

(a) whether or not there was any false representation;

(b) the fact that the false representation was keeping the document holder from losing her Canadian aviation document; and that

(c) the document holder knew for a fact that, by making the false representation, she was avoiding the loss of her privileges

The Appellant concluded that the Minister must prove the four elements of the contravention and that he did not prove his case. Mrs. Trottier should have known that the false representation would avoid the loss of privileges of her document. Transport Canada must prove that Mrs. Trottier would have lost her privileges. Nobody asked the question: "Have you consulted a physician since your last aviation medical examination?" Furthermore, she had not read the document. Mrs. Trottier's representative submitted that it is too much to ask a pilot to correct a doctor's mistakes. He said that the pilot would not have been found guilty of the doctor's negligence. Finally, there would have been no difference in the final result.

According to the arguments presented in response to grounds (a) and (b) of the appeal, the Minister stated that he proved during the review hearing, on a balance of probabilities, that the Appellant made a false representation by not divulging to her medical examiner the fact that she had undergone laser surgery seven months earlier. He would have asked her to have her ophthalmologist fill in a report and would not have renewed her medical certificate immediately, as Dr. Bélanger mentioned on page 33 of the transcript.

The Minister's representative submitted that the Minister proved that the Appellant knowingly made this false representation. Thus, as mentioned in Exhibit M-1, paragraph 3:

During the medical examination on April 23, 1998, the Applicant knew that photorefractive keratectomy would normally lead to a suspension of the medical certificate for a six-month period.

Moreover, as the Appellant answered Mr. Tamborriello's question on page 133 of the transcript:

Q. And you knew very well that if you had mentioned it to Transport Canada the day after the surgery, they would have suspended your privileges for six months?

A. Yes.

Q. And this was now seven months later?

A. Yes.

And on page 134:

Q. So, at that time, you became aware that this surgery leads to, could lead to, a licence suspension?

A. Yes, could.

Q. Now, you say you read an article about this?

A. Yes.

Q. Where was it published? Do you have a copy of this article?

A. Not here, but it was an article in a magazine.

And later, on pages 135 and 136, the Appellant mentioned that she did not want to mention the surgery to avoid causing problems in her work because that is how she earns her living:

A. The article was not very clear. It mentioned those operations in general and some of the problems they could cause. I read the article. I said to myself, well, look, I've had the surgery, I wasn't aware, I have no symptoms, the doctor told me my eyesight is good, I am followed closely, I am not looking for trouble either, this is how I earn my living, I did not see fit to mention it.

Q. So, you did not mention it because that's how you earn your living?

A. Yes.

Moreover, the Minister submitted that the Appellant has a better understanding than the average pilot concerning the possible consequences of such surgery.

Finally, the Minister submitted that nothing in the evidence, particularly in the testimony of Dr. Dubé, leads us to conclude that if Transport Canada had received the information about the Appellant undergoing laser surgery, the Minister would have renewed the privileges accorded by the Canadian Aviation document just the same.

If Dr. Wallace renewed the Appellant's medical certificate on July 14, 1998, it was following his assessment of the ophthalmologist's report and not because it had already been more than six months since the Appellant underwent the surgery. In fact, the Minister became aware of the ophthalmologist's report for the first time during the assessment conducted by Dr. Wallace.

In considering this ground, we prefer the Minister's analysis of the evidence before us and we are satisfied with the Member's conclusion at review which was that the Appellant knowingly made a false representation during her medical examination on April 23, 1998.

We would like to thank the representatives of both parties for the detailed and well-prepared arguments in this case.

DETERMINATION

The Appeal is dismissed. The appeal panel confirms the suspension of seven days imposed by the Minister of Transport.

Reasons for appeal determination by:

Faye Smith, Chairperson

Concurred:

Dr. Michel Larose, Member
Michel Boulianne, Member


[1] Traité de droit pénal canadien, 4th Ed., Cowansville, Quebec, Yvon Blais, 1998.

[2] Page 312 supra.

[3] Subsection 401.03(1) and section 404.03 of the Canadian Aviation Regulations (CARs).