Decisions

TATC File No. W-2981-18
MoT File No. SA 5015-7946

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Ruf's Maintenance, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, ss. 6.9, 7.1(1)(b), 7.3(1)(c), 27
Canadian Aviation Regulations, SOR/96-433, ss. 103.06, 573.03(1)

False entries with intent to mislead, AMO


Review Determination
Allister W. Ogilvie


Decision: March 31, 2004

The Minister's decision to suspend the Applicant's Approved Maintenance Organization Certificate is confirmed.

A review hearing on the above matter was held March 25, 2004 at 10:00 hours at the Federal Court of Canada, in Calgary, Alberta.

BACKGROUND

Mr. Ruf May has been an aircraft maintenance engineer (AME) since 1970. He spent many years as an AME in the employ of what was then Pacific Western Airlines although he has since retired. In 1992 he applied for and was granted approval for his own aircraft maintenance organization (AMO) certificate number 220-92. Mr. May is the designated Director of Maintenance for that business. The AMO is essentially a one-man shop located at the Olds-Didsbury Airport. Most of the business is the maintenance and repair of agricultural aircraft.

In early 2003 Ruf's Maintenance aided a client in importing an aircraft to Canada from the U.S. It was inspected and repaired to a standard applicable for a certificate of airworthiness for a private aircraft. Subsequently the aircraft's owner decided to put it into commercial service. The aircraft was then inspected by a different maintenance facility.

That inspection lead Transport Canada to believe that Ruf's Maintenance had made inappropriate entries in some of the documentation which Ruf's Maintenance had prepared in its initial work on the aircraft. The belief resulted in the issuance of a Notice of Suspension of Mr. May's AME licence for a 21-day period. Mr. May accepted the suspension, surrendered his document and served his suspension.

Some time later Mr. May was informed that such a licence suspension disqualified him as the person responsible for maintenance (PRM). As an AMO is required to have a PRM acting in position Transport Canada issued a Notice of Suspension of the AMO of Ruf's Maintenance, dated March 17, 2004 to be effective on March 31, 2004 at 23:59 in the following form:

Notice of Suspension

Pursuant to section 7.1(1)(b) of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document for the following reasons:

Appendix A to Notice of Suspension

Grounds for the Suspension

Conditions for Reinstatement

1. Ruf's Maintenance does not employ a person who is responsible for all of the activities that the AMO undertakes as required by Canadian Aviation Regulation 573.03(1).

1. Appoint a person who will be responsible for all of the activities that the AMO undertakes pursuant to this Part; and ensure that the person appointed meets the standards of competence set out in Chapter 573 of the Airworthiness Manual in accordance with Canadian Aviation Regulation 573.03(1).

Ruf's Maintenance asked the Transportation Appeal Tribunal of Canada to review the decision. That request brought about a hearing of the matter in Calgary on March 25, 2004.

THE LAW

Aeronautics Act

7.1 (1) If the Minister decides to suspend, cancel or refuse to renew a Canadian aviation document on the grounds that

...

(b) the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to meet the qualifications necessary for the issuance of the document or to fulfil the conditions subject to which the document was issued, or

...

7.3 (1) No person shall

...

(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;

27 ...

(2) In any action or proceeding under this Act, any certificate purporting to be signed by the Minister, the Secretary of the Department of Transport or the Secretary of the Canadian Transportation Agency stating that a document, authorization or exemption under this Act

(a) has or has not been issued to or in respect of any person named in the certificate or in respect of any aircraft, aerodrome or other aviation facility identified in the certificate, or

(b) having been issued to or in respect of any person named in the certificate or in respect of any aircraft, aerodrome or other aviation facility identified in the certificate, has expired, or has been cancelled or suspended as of a date stated in the certificate, and stating, in the case of a suspension, the period of the suspension,

....

Canadian Aviation Regulations

103.03 Where a Canadian aviation document has been suspended or cancelled, the person to whom it was issued shall return it to the Minister immediately after the effective date of the suspension.

103.06 (1) A notice issued by the Minister pursuant to subsections 6.9(1) and (2) of the Act shall include

(a) a description of the particulars of the alleged contravention;

(b) where the Minister has decided to suspend the Canadian aviation document, a statement of the duration of the suspension; and

(c) a statement that a request for review by the Tribunal does not operate as a stay of the suspension or cancellation but that an application may be made in writing to the Tribunal, pursuant to subsection 6.9(4) of the Act, to stay the suspension or cancellation until the review of the decision of the Minister has been concluded.

103.07 In addition to the grounds referred to in sections 6.9 to 7.1 of the Act, the Minister may suspend, cancel or refuse to renew a Canadian aviation document where

(a) the Canadian aviation document has been voluntarily surrendered to the Minister by its holder;

573.10 (1) An approved maintenance organization (AMO) certificate holder shall establish, maintain and authorize the use of a maintenance policy manual (MPM) that contains information to ensure the efficiency of the AMO's maintenance policies, dealing with the subjects set out in Chapter 573 of the Airworthiness Manual.

(2) The Minister may authorize the incorporation by reference in an MPM of detailed procedures manuals and lists prepared by the AMO certificate holder, dealing with the subjects set out in Chapter 573 of the Airworthiness Manual, where

(a) the policy affecting those detailed procedures and the composition of the lists is set out in the MPM;

(b) each incorporation is clearly indicated in the MPM; and

(c) the AMO certificate holder ensures that the incorporated procedures manuals and lists meet the requirements of this section.

(3) Where detailed procedures manuals or lists are being incorporated by reference in an MPM, the person appointed pursuant to section 573.03 or another person to whom that management function is assigned pursuant to section 573.04 shall certify in writing that the incorporated documents and every amendment thereto meet the requirements of the policy established in the MPM with respect to those documents.

(4) An AMO certificate holder need not conform to the policy and procedures contained in its MPM, where the Minister has authorized the non-conformity in writing, after it has been demonstrated that such non-conformity would not affect the safety of the aeronautical product to be maintained or the maintenance service to be offered.

(5) An AMO certificate holder shall submit each page of its MPM to the Minister for approval, either individually or in accordance with a procedure that ensures compliance with the requirements of Chapter 573 of the Airworthiness Manual.

(6) An AMO certificate holder shall amend its MPM when instructed to do so by the Minister, where the MPM does not

(a) meet the requirements of this Subpart; or

(b) contain policies or procedures that are sufficiently detailed to demonstrate that the AMO's quality assurance program meets the requirements of these Regulations.

(7) An AMO certificate holder shall take steps to ensure that a current copy of its MPM, or the portions thereof that are relevant to the task to be performed, is made available to each person who performs or certifies that task.

(8) An AMO certificate holder shall amend each copy of its MPM within 30 days after receiving an approval issued pursuant to subsection (5).

(9) The Minister shall, if the standards set out in Chapter 573 of the Airworthiness Manual are met, approve an MPM and any amendments to that manual.

Airworthiness Manual

573.03 (1) subject to (3), persons appointed pursuant to section 573.03 of the CARs shall meet the following standards of competence:

...

(c) their personal record in relation to aviation shall not include;

(i) any conviction under Section 7.3 of the Aeronautics Act; or

(ii) any combination of two or more convictions on separate occasions, under sections 571.10 or 571.11 of the Canadian Aviation Regulations.

Evidence

I am satisfied on the evidence adduced that Mr. David McNab, Superintendent of Aircraft Maintenance and Manufacturing has the appropriate delegated authority to suspend or cancel a Canadian aviation document (CAD) issued pursuant to regulations made under section 4.9 of the Aeronautics Act (the Act) for reasons that are stipulated under section 7.1 of the Act.

As of the date of the hearing, March 25, 2004, Ruf's Maintenance held a valid AMO certificate, number 220-92. The MPM for that organization shows at section 10, Organization, that Mr. Ruf May is the Director of Maintenance. It states that he is a licensed AME, licence number 099817 with ratings M1 and M2. In section 9, Assignment of Responsibilities, it provides that the Director of Maintenance shall be qualified in accordance with CAR 573.03(1), and shall be the person responsible for maintenance.

A Secretary Certificate in evidence provides that an AME licence number M98817 has been issued to Mr. Ruf May. It further stipulates that the licence was suspended pursuant to section 6.9 of the Act, during the period from January 27, 2004 to February 16, 2004 for an offence under paragraph 7.3(1)(c) of the Act.

Mr. May described the circumstances that preceded the surrender of his licence to Transport officials. He did not consider that he had violated a provision but thought it more expedient to surrender his licence in the circumstance. He felt that the surrender and passage of the time of suspension had paid for the alleged error. He was not aware that there could be other repercussions.

ARGUMENT

Minister of Transport

The Minister is of the view that the standard to section 573.03 precludes anyone with a conviction under section 7.3 of the Act from acting as the PRM for an AMO. He argues that the evidence of the Secretary Certificate establishes a conviction of Mr. May under section 7.3 of the Act. Hence Mr. May is disqualified from serving as PRM for Ruf's Maintenance. The pending suspension of that CAD is therefore justified.

Document Holder

Counsel for Ruf's Maintenance takes a different point of view. He argues on the basis that there is no conviction.

Mr. O'Ferral posits a jurisdictional argument. He points out that the alleged violation is under paragraph 7.3(1)(c) of the Act. But under subsection (2) one found to have contravened subsection (1) is guilty of either an indictable offence or an offence on summary conviction. Section 7.5 of the Act allows that where a person is convicted of an offence under Part I, wherein section 7.3 falls, in addition to the any other punishment the court may make an order where the person is a document holder, prohibiting the person from doing any act or thing authorized by the document.

Therefore if there was a conviction, by a court, the Minister could apply to the court for the prohibition that it now seeks. As the definitions show this Tribunal is not defined as a court. Therefore there is no jurisdiction in this Tribunal to make the prohibition on Mr. May from acting as PRM.

As section 7.3 goes to wilful conduct it is akin to criminal conviction. There is no evidence of any conviction before the Tribunal. Mr. May surrendered his licence but that did not constitute a conviction. There must be a third party adjudication pronouncing on the matter for a conviction.

Mr. O'Ferral relied upon a definition in Black's Law Dictionary and to the Canada Evidence Act in support of that proposition.

He argues that the Secretary Certificate in evidence is not a certificate of a conviction but a statement that a licence had been suspended.

DISCUSSION

Mr. O'Ferral's argument regarding jurisdiction flows to its logical conclusion based on the premise that a person who is found to have contravened subsection 7.3(1) of the Act is then guilty of either an indictable or summary conviction offence as is provided by subsection (2) of the Act. The rest of the argument leading to a court matter stems from that premise. However, that is not always the case. The authorities may choose to take either of those routes or may elect to take the administrative route. The Federal Court has declared[1] that the Tribunal has jurisdiction under section 6.9 to review allegations under section 7.3 of the Act. That is the case in this instance. I reject the argument that the Tribunal does not have jurisdiction.

The Minister has adduced evidence that Mr. May's AME licence was suspended for a period of 21 days in early 2004. Mr. May concedes that he submitted his licence to Transport Canada officials but says that was a matter of expedience, not an admission of guilt. It was argued that as there was no adjudication there can be no conviction.

ISSUE

The issue before me is then whether a suspension of a CAD under section 6.9 for an offence under section 7.3 amounts to a "conviction" as it is used in the standards to CARs 573.03. I find that it is.

Neither the Act nor the Regulations defines conviction. Black's Law Dictionary 6th states in part: "In a general sense, the result of a criminal trial which ends in a judgment or sentence that the accused is guilty as charged." Here we are dealing with regulatory rather than criminal matters.

I was referred to section 12 of the Canada Evidence Act. It addresses examination of a witness as to previous convictions and what may be submitted as proof of conviction. However the proofs of conviction mentioned there go to indictable or summary offence convictions.

Paragraph 12(2)(a) of the Canada Evidence Act:

(2) A conviction may be proved by producing

(a) a certificate containing the substance and effect only, omitting the formal part, of the indictment and conviction, if it is for an indictable offence, or a copy of the summary conviction, if it is for an offence punishable on summary conviction, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court in which the conviction, if on indictment, was had, or to which the conviction, if summary, was returned; and

The "convictions" specified in the standard at 573.03(1)(c) noted above are as follows:

(i) any conviction under Section 7.3 of the Aeronautics Act,

(ii) any combination of two or more convictions on separate occasions under Sections 571.10 or 571.11of the Canadian Aviation Regulations.

Regarding (i) although the Minister might have chosen to proceed by way of summary conviction or indictable offences, he did not. The administrative regulatory route was elected.

Regarding (ii) the sections noted are designated provisions pursuant to section 103.08 of the CARs. Subsection 7.6(2) of the Act allows that a person who contravenes a designated provision is guilty of an offence and liable to the punishment imposed under that section but no proceeding against the person shall be taken by way of summary conviction.

It can be seen that the term "conviction" as used in subparagraph 573.03(1)(c)(i) in this instance does not apply to summary offence conviction. Thus the arguments and reference to the Canada Evidence Act by Mr. O'Ferral are not of assistance.

Mr. May surrendered his licence to Transport Canada but says that he was not pleading guilty but did so as a matter of expedience.

If a document has been suspended, the person to whom it was issued is obliged by section 103.03 of the CARs to return it to the Minister immediately after the effective date of the suspension. There is a provision for the suspension of a voluntarily surrendered document (103.07), but it is on grounds other than section 6.9 of the Act. As Mr. Ruf's licence was suspended under section 6.9 its return was mandatory.

The Act and Regulations as written do not address whether a suspension under section 6.9 amounts to a conviction as it is stated in the standard to section 573.03. I find that it is a reasonable inference that it does.

Under section 6.9 the Minister may decide to suspend a document on the grounds that the holder has contravened a provision. If a document holder wishes to dispute that decision a review of it may be taken to this Tribunal. The Tribunal may find that the contravention occurred and confirm the Minister's decision. The suspension takes effect. That would be tantamount to a "conviction" but that particular term is not used in that section.

If no review is requested then the Minister's belief that a contravention has occurred is not contested and the suspension takes effect. Surely that also would be tantamount to a "conviction."

Counsel has argued that there must be a third party adjudication, such as in the first instance above, for there to be a conviction. That could lead to an unwarranted result. A hypothetical scenario may help illustrate. The example is hypothetical only and I in no way impugn Mr. May's motives.

Most of the paragraphs of section 7.3 of the Act speak to some knowing or wilful misuse of a document. A person who has knowingly or wilfully misused aviation documents may not be suitable for an important supervisory position. That is reflected by CARs 573.03 which disallows a person having been convicted under section 7.3 from being a PRM. Hypothetically speaking, a person may make a conscious decision to violate paragraphs of 7.3 for reasons only known to him. If the person is caught, the Minister may choose to suspend that person's aviation document. The document holder although wilfully having committed the breach chooses not to contest it. He thereby avoids a "conviction" and may assume the role of a PRM. I do not think that can be the intended result of the paragraphs.

If one chooses not to ask for a review of the Minister's decision to suspend under 6.9 for a contravention of 7.3 and serves the suspension imposed, that suspension will be part of their record. For the purpose of the standard at 573.03 that record would include a "conviction" under section 7.3 of the Act.

CONCLUSION

I confirm the Minister's decision.

Although he did not agree with the allegation regarding his AME licence suspension Mr. May chose not to contest it. He served the 21-day suspension. That became part of his aviation record. The suspension was for a contravention under paragraph 7.3(1)(c) of the Act.

Section 573.03 of the CARs provides that an AMO certificate holder shall appoint a PRM. That person must meet the standards of competence set out in Chapter 573 of the Airworthiness Manual.

Section 573.03 of the Airworthiness Manual states that persons appointed pursuant to CARs 573.03 shall meet certain standards of competence. At 573.03(1)(c)(i) it states that the person's record in relation to aviation shall not include any conviction under section 7.3 of the Aeronautics Act.

I have concluded that the record of Mr. May's suspension under 6.9 for a contravention of 7.3 is a "conviction" under 7.3 as it is known in the standard to 573.03.

That finding disqualifies Mr. May from being a PRM.

Under paragraph 7.1(1)(b) of the Act the Minister may decide to suspend a CAD on the grounds that the holder ceases to meet the qualifications necessary for the issuance of the document or to fulfil the conditions subject to which the document was issued.

The AMO document for Ruf's Maintenance requires that there be a PRM. As Mr. May is not currently able to fulfil that condition, the Minister is justified in the suspension of the document.

This finding has harsh consequences for Mr. May as he is a one-man operation. However, I am constrained by the Act to either confirm the decision or to refer it back. As I have concluded that the Minister's interpretation is correct I must confirm the decision.

Allister Ogilvie
Vice-Chairperson
Transportation Appeal Tribunal of Canada


[1]Canada (Attorney General) v. Woods [2002] F.C.J. No. 1267.


Appeal decision
E. David Dover, Tracy Medve, William Thornton Tweed


Decision: September 14, 2004

Based on findings of officially induced error the appeal panel refers the matter back to the Minister for reconsideration.

An appeal hearing on the above matter was held Wednesday, June 23, 2004 at 10:00 hours at the Federal Court of Canada, in Calgary, Alberta.

BACKGROUND

Ruf's Maintenance is engaged primarily in the maintenance and repair of aircraft used as crop sprayers. The Appellant's approved maintenance organization (AMO) certificate 220-92 was issued to the Appellant by Transport Canada in 1992. Mr. May has been an aircraft maintenance engineer (AME) for over thirty years and has been the approved Director of Maintenance (DOM) or Person Responsible for Maintenance (PRM) for the Appellant since the issuance of its AMO. Mr. May is the only employee of the Appellant.

In early 2003 the Appellant was retained for the purposes of completing and documenting work necessary for an application for a certificate of airworthiness (C of A) for an aircraft to be imported into Canada. The Appellant gave evidence at the review hearing that Mr. May performed the requisite inspection, maintenance and recording on the aircraft and completed the application form for a C of A, which was subsequently issued by Transport Canada. Some time following the issuance of the C of A the aircraft was inspected by a different AMO in connection with the commercial registration of the aircraft, and it was discovered that an error had been made by the Appellant in relation to the completion of a form required as part of the C of A issuance process. This error subsequently came to the attention of Transport Canada which resulted in the issuance of a Notice of Suspension of Mr. May's AME licence for a 21-day period, pursuant to section 6.9 of the Aeronautics Act (Notice #1).

Mr. May provided evidence at the review hearing that upon receipt of Notice #1 he decided that he would avoid the costs and time associated with a review hearing on the matter and elected to voluntarily surrender his licence for the requisite 21-day period. He further testified that he drove to Calgary for the purpose of surrendering his licence to Mr. Leblanc, a Transport Canada enforcement officer. During a meeting with Mr. Leblanc, Mr. May testified that prior to surrendering his licence he asked for and received assurance from Mr. Leblanc that delivery of his licence would put an end to the matter. Mr. May handed his licence over to Mr. Leblanc on January 27, 2004 for a 21-day period which ended February 16, 2004.

On February 11, 2004, Mr. May received a letter from Transport Canada advising that due to his conviction under section 7.3 of the Aeronautics Act he was no longer eligible to be the PRM for the Appellant. Mr. May was advised to nominate another PRM and that failure to do so would result in immediate suspension of the Appellant's AMO. Discussions ensued between Transport Canada and Mr. May, followed by additional correspondence from the Respondent reiterating their original position that the 7.3 conviction rendered Mr. May ineligible. On February 16, 2004, Mr. May nominated Mr. Semmler as the PRM for the Appellant. On February 17, 2004, the Respondent issued a Notice of Suspension of the Appellant's AMO with an effective date of March 18, 2004 (Notice #2). Mr. May subsequently advised that he was nominating Mr. Clayton as the PRM for the Appellant. Following Transport Canada's acceptance of Mr. Clayton as a qualified PRM, on March 15, 2004 the Respondent confirmed in writing to the Appellant that Notice #2 would not go into effect.

On March 16, 2004, Mr. May advised Transport Canada that Mr. Clayton would be the PRM until March 31, 2004 and then Mr. May would be appointed as the PRM. This letter prompted the issuance of another Notice of Suspension (Notice #3) dated March 17, 2004 with an effective date of March 31, 2004.

The review hearing as requested by the Appellant was conducted before Mr. Allister Ogilvie on March 25, 2004 at Calgary, Alberta. The review hearing was conducted pursuant to Notice #3. Mr. Ogilvie in his review determination confirmed the Minister's decision.

THE LAW

Aeronautics Act

Section 6.9:

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.

Subsection 7.1(1):

7.1 (1) If the Minister decides to suspend, cancel or refuse to renew a Canadian aviation document on the grounds that

(a) the holder of the document is incompetent,

(b) the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to meet the qualifications necessary for the issuance of the document or to fulfil the conditions subject to which the document was issued, or

(c) the Minister is of the opinion that the public interest and, in particular, the aviation record of the holder of the document or of any principal of the holder, as defined in regulations made under paragraph 6.71(3)(a), warrant it,

the Minister shall, by personal service or by registered or certified mail sent to the holder or to the owner or operator of the aircraft, airport or facility, as the case may be, at the latest known address, notify that person of the Minister's decision.

Paragraph 7.3(1)(c):

7.3 (1) No person shall

[...]

(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;

Section 27:

27.(1) In any action or proceeding under this Act, any document purporting to be certified by the Minister, the Secretary of the Department of Transport or the Secretary of the Canadian Transportation Agency to be a true copy of a document made, given or issued under this Act is, without proof of the signature or of the official character of the person appearing to have signed the document, evidence

(a) of the original document of which it purports to be a copy;

(b) that the original document was made, given or issued by or by the authority of or deposited with the person named therein and was made, given, issued or deposited at the time stated in the certified copy, if a time is stated therein; and

(c) that the original document was signed, certified, attested or executed by the persons and in the manner shown in the certified copy.

(2) In any action or proceeding under this Act, any certificate purporting to be signed by the Minister, the Secretary of the Department of Transport or the Secretary of the Canadian Transportation Agency stating that a document, authorization or exemption under this Act

(a) has or has not been issued to or in respect of any person named in the certificate or in respect of any aircraft, aerodrome or other aviation facility identified in the certificate, or

(b) having been issued to or in respect of any person named in the certificate or in respect of any aircraft, aerodrome or other aviation facility identified in the certificate, has expired, or has been cancelled or suspended as of a date stated in the certificate, and stating, in the case of a suspension, the period of the suspension,

is evidence of the facts stated therein, without proof of the signature or of the official character of the person appearing to have signed the certificate and without further proof thereof.

Section 573.03 of the Canadian Aviation Regulations (CARs):

573.03 (1) An approved maintenance organization (AMO) certificate holder shall

(a) appoint a person to be responsible for all of the activities that the AMO undertakes pursuant to this Part; and

(b) ensure that the person appointed pursuant to paragraph (a) meets the standards of competence set out in Chapter 573 of the Airworthiness Manual.

(2) A person appointed pursuant to paragraph (1)(a) shall, within 30 days after the appointment, forward to the Minister a signed statement that the person accepts the responsibilities of the position to which the person has been appointed.

(3) An AMO certificate holder shall provide the person appointed pursuant to paragraph (1)(a) with the staff and facilities necessary to ensure compliance with this Subpart.

GROUNDS OF APPEAL

Mr. May appealed based on the following:

1. Mr. Ogilvie's "acceptance" of a Secretary Certificate will be disputed.

2. Mr. Ogilvie's findings as to the issue of a "conviction" will be disputed.

3. If permitted by the Chair, Mr. McNab (witness for the Minister at the review hearing) will be examined.

4. The "grounds" for Notice of Suspension will be disputed.

5. An appeal to common sense will be made.

At the outset of the appeal hearing Mr. May, who represented himself, withdrew his request to examine Mr. McNab.

DISCUSSION

The Facts

There is no dispute between the parties to this appeal with respect to the facts.

There was no disagreement from the Appellant that if a person is convicted under paragraph 7.3(1)(c) of the Aeronautics Act that person would not be eligible to be the PRM for an AMO.

There is no dispute that Mr. May voluntarily surrendered his licence pursuant to Notice #1 nor is there evidence from the Minister to dispute that Mr. May surrendered his licence after being advised by Mr. Leblanc that if he surrendered his licence for the 21-day suspension period that would be the end of the matter.

Acceptance of the Secretary's Certificate

At review, the Minister's representative entered a Secretary's Certificate as evidence of the suspension of Mr. May's licence. The Appellant's position is that the Secretary's Certificate did not confirm that a Canadian aviation document was surrendered nor did it confirm which of Mr. May's six Canadian aviation documents was surrendered. We agree that the Secretary's Certificate was valid evidence of the suspension of Mr. May's AME licence M98817 and was properly accepted by the hearing officer pursuant to subsection 27(2) of the Aeronautics Act.

Meaning of "Conviction"

In the absence of any definition of the word "conviction" in the Aeronautics Act or the Canadian Aviation Regulations the review hearing member presented an analysis of the legislation and concluded that an undisputed suspension forms part of a document holder's record which is tantamount to a "conviction".

We agree with the analysis and conclusions of the review hearing member on this point and conclude that if Mr. May is deemed "convicted" within the meaning of section 573.03 of the CARs he is not eligible to be the PRM for the Appellant.

Standard of Review

The Minister submitted that the standard of review for this appeal panel is to determine whether the review member's findings were "unreasonable"[1] and submitted that the findings of Mr. Ogilvie were not unreasonable.

Once again, it is the finding of the appeal panel that Mr. Ogilvie's findings were not unreasonable and we therefore concur with the submission of the Respondent's representative on this point.

Common Sense

It is the appeal to common sense that is the most compelling argument raised by the Appellant in relation to this matter. Although not framed as part of a specific defence Mr. May at the review hearing and at the appeal focused on the circumstances leading up to the surrender of his licence pursuant to Notice #1. These circumstances were not disputed by the Minister.

There exists in administrative and criminal law the defence of an "officially induced error". The cases on this issue tend to be based on acts committed by persons who have relied on the interpretation of a statutory provision by a person of authority with responsibility for administering the particular statute, ultimately resulting in an offence under the statute or regulation. This availability of this defence was confirmed in The Queen v. Cancoil Thermal Corporation and Terence Parkinson[2] as follows:

The defence of 'officially induced error' is available as a defence to an alleged violation of a regulatory statute where an accused has reasonably relied upon the erroneous legal opinion or advice of an official who is responsible for the administration or enforcement of the particular law. In order for the accused to successfully raise this defence, he must show that he relied on the erroneous legal opinion of the official and that his reliance was reasonable. The reasonableness will depend upon several factors including the efforts he made to ascertain the proper law, the complexity or obscurity of the law, the position of the official who gave the advice, and the clarity, definitiveness and reasonableness of the advice given.

This finding was relied upon in the case of the Minister of Transport v. Ronn Palley[3]. The reviewing member of this Tribunal found as follows:

I conclude that Mr. Palley can make out either a defence of due diligence, or a defence of officially induced error, if the evidence proves the following on a balance of probabilities: that he received advice from a Transport Canada official that he did not need a permit to undertake the Terra job, that he relied on such advice in deciding not to apply for a permit before undertaking the flying described in the allegation, and that such reliance was reasonable in the circumstances.

The concept of officially induced error has also been recognized by the criminal courts, in a case in which the accused did not raise it as a particular defence. In R. v. Jorgensen[4], Lamer C.J. wrote:

In order for an accused to rely on an officially induced error as an excuse, he must show, after establishing he made an error of law (or of mixed law and fact), that he considered his legal position, consulted an appropriate official, obtained reasonable advice and relied on that advice in his actions. When considering the legal consequences of his actions, it is insufficient for an accused who wishes to benefit from this excuse to simply have assumed that his conduct was permissible. The advice came from an appropriate official if that official was one whom a reasonable individual in the position of the accused would normally consider responsible for advice about the particular law in question. If an appropriate official is consulted, the advice obtained will generally be presumed to be reasonable unless it appears on its face to be utterly unreasonable. The advice relied on by the accused must also have been erroneous, but this fact does not need to be demonstrated by the accused. Reliance on the official advice can be shown by proving that the advice was obtained before the actions in question were commenced and by showing that the questions posed to the official were specifically tailored to the accused's situation.

And in R. v. Bauman[5] the availability of such a defence is again recognized:

Officially induced error is a defence to an alleged violation of a regulatory statute where an accused has reasonably relied upon the erroneous opinion or advice of an official who is responsible for the administration or enforcement of the regulatory statute.

Finally we cite R. v. Steger[6] as follows in support of the availability of this defence under similar circumstances:

As a result I am satisfied that the appellants' "guilty" pleas were induced by the extreme pressure of the circumstances in which they found themselves, coupled with the conflicting representations made to them by Constable Palmer as to the nature of the offence ("theft over" and then, on reconsideration, "theft under"), and considering the alternatives presented to the appellants with respect to immediately regaining their freedom to return to their dogs and continuing on their expedition to Baker Lake without extensive delays.

In the case at hand, we have undisputed evidence that Mr. May received advice from Mr. Leblanc, a Transport Canada enforcement official, that the voluntary suspension of his AME licence would bring the matter to an end. We also have undisputed evidence that Mr. May relied on this advice by the fact that he drove to Calgary to surrender his licence to Mr. Leblanc who acted as the Minister's representative. The question then becomes, was that reliance reasonable? Counsel for the Minister suggested at the appeal hearing that Mr. May, as a licensed AME, ought to have known the consequences of surrendering his licence. If this is the case then it follows that Mr. Leblanc also ought to have known these consequences. If that is so, then we can only conclude that Mr. Leblanc, for reasons unknown, chose to mislead Mr. May even though it was evident Mr. May was relying on Mr. Leblanc's representations to make his decision to voluntarily surrender his licence. Since there was no evidence provided to reach the conclusion that Mr. Leblanc had any mal intent, we prefer to conclude that the ultimate consequence of Mr. May surrendering his licence (i.e., his disqualification as the PRM for the Appellant) did not occur to Mr. Leblanc and that it is not a fair standard to assume that Mr. May would have connected the dots to arrive at this conclusion. Furthermore, since Mr. Leblanc is in the enforcement branch of Transport Canada, he would be the most likely to know the consequences and we find that for all these reasons, it was reasonable for Mr. May to rely on the representations made by Mr. Leblanc.

Although it would be preferable to address this issue in a circumstance where it was clearly raised by Mr. May either at the appeal or at the review hearing, we are not compelled to ignore this argument only for that reason, since Mr. May did try to address it in some indirect fashion at both hearings.

On the issue of the fact that the accused did not raise the defence either at trial or on appeal, Lamer C.J. wrote in R. v. Jorgensen:

Since the accused are entitled to an acquittal in this case, nothing turns on the application of an officially induced error of law analysis. Had the accused had the requisite mens rea for the s. 163(2) offence, however, they would have been entitled to a judicial stay of proceedings as a result of officially induced error of law.

We therefore find there was an officially induced error relative to Notice #1 which led to the issuance of Notice #2 and ultimately Notice #3 which is the subject of this appeal. Mr. May's counsel at the review hearing ought to have dealt with this issue at the review hearing, but since he did not we are of the opinion that Mr. May should not be prejudiced by this oversight.

CONCLUSION

Based on the findings of officially induced error pursuant to Notice #1, the power of this appeal panel, relative to a determination made under subsection 7.1(7) of the Aeronautics Act, is to refer the matter back to the Minister. This is not a particularly satisfying result, given that the appeal was based on Notice #3. However, we do refer this matter back to the Minister and recommend that the Minister:

(1) Allow Mr. May to withdraw the voluntary suspension of his licence in response to Notice # 1.

(2) Permit Mr. May to ask the Tribunal to extend the time limit for requesting a Review Hearing pursuant to Notice #1.

This would allow the original matter under Notice #1 to be heard on its merits. Subsection 6.9(3) of the Aeronautics Act allows the Tribunal, on application by the document holder, to extend the filing time in requesting a review. Under the circumstances of this case, this would be the fairest outcome.

Reasons for Appeal Decision by:

Tracy Medve, Member

Concurred:

William T. Tweed, Member
E. David Dover, Member


[1] William R. Long v. Minister of Transport, CAT File No. O-2824-02.

[2] 27 C.C.C. (3d) 295.

[3] CAT File No. P-2613-33.

[4] [1995] 4 S.C.R. 55.

[5] 18 O.R. (3d) 772.

[6] [1982] N.W.T.J. No. 11.