Decisions

TATC File No. W-3058-27
MoT File No. 5802-361689

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Alvin Bancarz, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 6.71 (1) and 6.71(1)(c)

Public safety, Public interest, Incompetence, Procedural Fairness, Aircraft maintenance engineer (AME) licence


Review Determination
Faye H. Smith


Decision: September 20, 2005

The matter is referred back to the Minister for reconsideration of the decision to refuse to issue Mr. Bancarz' AME licence in the light of the discussions set out in the reasons for determination.

A review hearing on this matter was held July 20, 21 and 22, 2005, at the Federal Court of Canada, in Edmonton, Alberta.

BACKGROUND

Mr. Bancarz held an aircraft maintenance engineer (AME) licence since December, 1998 which expired in May, 2004. He applied for renewal of his AME licence # 361689 and following a risk analysis carried out by the Minister's officials for the purpose, it was decided that for reasons of incompetence and as it was not in the public interest, the AME licence would not be reissued to Mr. Bancarz.

Accordingly, by way of Notice of Refusal to Issue or Amend a Canadian Aviation Document dated September 8, 2004, Mr. Alvin Bancarz was informed that the Minister of Transport has decided, pursuant to section 6.71 of the Aeronautics Act, to refuse to issue or amend aircraft maintenance engineer licence # 361689 on the grounds set out in Appendix A of the Notice of Refusal to Issue or Amend a Canadian Aviation Document as follows:

Appendix A

x Incompetence (par. 6.71(1)(a))

(...)

x Public interest reasons for refusal (par.6.71(1)(c))

Details of the Minister's grounds for the decision set out above are as follows:

INCOMPETENCE

Mr. Bancarz has repeatedly demonstrated an insufficiency of disposition to comply with the Canadian Aviation Regulations and industry standard practices during the exercise of the privileges of his Aircraft Maintenance Engineer (AME) Licence. This pattern of regulatory non-compliance, misleading records, and failure to meet minimum industry standard practices related to safe aircraft maintenance constitutes incompetence. The following examples illustrate the pattern of Mr. Bancarz signing a maintenance release for maintenance, performed either by himself or by persons under his control, when the regulatory requirements were not met.

  • September 1999 - Mr. Bancarz released welding not performed in accordance with an appropriate Maintenance Policy Manual.
  • March 2001 - Mr. Bancarz released maintenance performed on an aircraft without required weight & balance amendments and other required entries in the technical record. He was assessed a license suspension for an offence under Section 571.03 and a monetary penalty for an offence under 605.94(1).
  • January and February 2004
    • Mr. Bancarz signed an application requiring an AME signature when the application documentation did not represent the actual status of the aircraft, for the purpose of obtaining a Canadian aviation document.
    • Mr. Bancarz performed and released specialized maintenance not accomplished in accordance with an appropriate maintenance policy manual.
    • Mr. Bancarz performed and released maintenance that was not in accordance with the most recent maintenance manual or equivalent to those specified by the manufacturer or in accordance with recognized industry practices at the time the maintenance was performed.
    • Mr. Bancarz released maintenance when the details of the work were not properly entered into the technical records for the aeronautical product.

PUBLIC INTEREST

The purpose of an AME licence is to assign the privilege of signing a maintenance release to competent persons. The maintenance release attests that applicable standards have been met, and hence the aircraft or aeronautical product conforms to its approved configuration and is in a condition for safe operation. The maintenance release is central to aviation safety because air operators and pilots rely upon it as proof that the released aircraft is safe. Clearly, the public interest in aviation safety requires that an AME be both technically competent, and trustworthy. Mr. Bancarz demonstrated technical competence in the ordinary manner, by meeting the standard requirements for an AME licence. His record clearly demonstrates an insufficiency of disposition to apply his technical skill and knowledge and make a maintenance release only when applicable standards have been met.

It is not in the public interest for a person whose maintenance release is not reliable to hold an AME licence. The following examples of maintenance released by Mr. Bancarz or performed under the direction of Mr. Bancarz demonstrate a record and pattern of unreliability that makes it contrary to the public interest for Mr. Bancarz to hold an AME licence.

  • September 1999 - Mr. Bancarz performed and released welding that was not done in accordance with an appropriate manual.
  • March 30 2001 - Mr. Bancarz performed maintenance on aircraft without completing required weight & balance amendments. He failed to make required entries in the technical record. He was assessed a license suspension for an offence under Section 571.03 and a monetary penalty for an offence under 605.94 (1).
  • January and February 2004
    • Mr. Bancarz signed an application requiring an AME signature when the application documentation did not represent the actual status of the aircraft, for the purpose of obtaining a Canadian aviation document.
    • Mr. Bancarz performed and released specialized maintenance not accomplished in accordance with an appropriate maintenance policy manual.
    • Mr. Bancarz performed and released maintenance that was not in accordance with the most recent maintenance manual or equivalent to those specified by the manufacturer or in accordance with recognized industry practices at the time the maintenance was performed.
    • Mr. Bancarz released maintenance when the details of the work were not properly entered into the technical records for the aeronautical product.
    • September 1997 - Mr. Bancarz and/or persons under his control performed maintenance on an aircraft and proper technical records were not made. Canadian Aero Industries, an entity controlled by Mr. Bancarz, was charged under section 571.03.
    • December 1997 - Mr. Bancarz and/or persons under his control removed an engine and installed a rebuilt engine. No technical records were made. Canadian Aero Industries was assessed a monetary penalty under section 571.03.
    • March 1998 - Mr. Bancarz and/or persons under his control performed maintenance on a Part VII aircraft when the work was not performed in accordance with an appropriate manual. Canadian Aero Industries was assessed a monetary penalty under section 571.03 and 571.05.
    • March 1998 - Mr. Bancarz performed maintenance on aircraft C-FIWF. He was not the holder of an AME license or other signing authority. No technical records were made. Sanctions were assessed for violations under section 571.03 and 571.05(a) of the CARs.
    • October 1998 - Mr. Bancarz was a principal of Canadian Aero Industries and performed aircraft maintenance. Neither Mr. Bancarz nor Canadian Aero Industries held required qualifications to perform or release the work, so Mr. Bancarz had other qualified persons sign maintenance releases. Investigation revealed that offences had occurred under Section 571.03 and 571.05(a) of the CARs. Canadian Aero Industries was not the holder of an AMO. Penalties were assessed against the company. Mr. Bancarz was central to these contraventions.

Following receipt of the aforesaid Notice of Refusal to Issue or Amend a Canadian Aviation Document, Mr. Bancarz requested a review of the Minister's decision by letter dated September 13, 2004. Subsequently, on December 13, 2004, Mr. A.D. (Tom) Schmit advised that he would represent Mr. Bancarz.

PRELIMINARY MOTION

Mr. Schmit requested an Order for Disclosure that Transport Canada produce all records relating to Mr. Bancarz from 1997 to the present making specific mention of file SAP 5504-050644.

Ms. Laperle, for the Minister, responded that the maintenance and manufacturing documents are found in the airworthiness section and that the investigations are found in the enforcement section of Transport Canada. Ms. Laperle stated that all relevant documents have been disclosed and that the defence has all the documents needed to make full answer and defence.

The Tribunal declined to make an Order for Disclosure relating to such a general request. However, as it is incumbent on the Minister to seek out enforcement as well as maintenance files where history of contraventions by Mr. Bancarz will be referenced in this hearing, the Tribunal requested that the Minister's representative enlist the aid of one of the enforcement inspectors to obtain file SAP 5504-050644, which the letter produced by Mr. Schmit indicated as its file number. Upon its production and perusal by Ms. Laperle, the file was reviewed by Mr. Schmit and a copy of the file was given to him. The Tribunal advised that the hearing would proceed as scheduled and if further matters related to disclosure arose, we would deal with them at that time.

LEGISLATION

Paragraphs 6.71(1)(a) and (c) of the Aeronautics Act:

6.71 (1) The Minister may refuse to issue or amend a Canadian aviation document on the grounds that

(a) the applicant is incompetent;

[...]

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

Subsection 566.03(12) of the Airworthiness Manual

566.03 Issuance and Endorsement of an AME Licence

[...]

(12) Reissue.

(a) Holders of licenses that have been expired for less than one year will be issued with a new licence upon submission of an application form 24-0083 and payment of the appropriate charge set forth in CAR 104.

THE EVIDENCE

The Minister's first witness, Mr. David Edmond McNab, has had no dealings with Mr. Bancarz. Mr. McNab has been the Superintendent of Aircraft Maintenance and Manufacturing in Calgary since 1994 and has been with Transport Canada for 17 years. He has held AME licences M1 and M2 since the early 1980s. Mr. McNab gave a brief overview of matters related to this hearing as follows:

An AME licence is granted to allow certification of work on aircraft but the AME does not need to do the work. The AME licence expires in six years and before the expiry date, it can be renewed by filling out the form and paying the fee. If it expires within the year the fee is higher, and if more than a year, there are recency requirements.

A maintenance release is a certification of work done and all work must be done to standard. A maintenance release is critical as it indicates the work done and the work outstanding and gives the pilot verification of the condition of the aircraft. The maintenance release is recorded in the journey log. The technical history is kept with the aircraft for continued maintenance. Modifications may be major or minor. Regarding AME licences, there are two non-specialty categories, M1 and M2. Specialty matters relating to avionics and structures are only done under an Approved Maintenance Organization (AMO). The M1 and M2 are non specialty and do not require an AMO to work on private aircraft. The difference in the category is that M1 is for smaller aircraft and M2 is for larger aircraft. All work done on an aircraft must be done to standard. It must be acceptable, it must be specified and it must have approved data. If the data does not exist, the AME must get it, go to the manufacturer or Design Approved Representative (DAR) or Design Approved Organization (DAO) as approved by Transport Canada. If the AME has a major modification, he must go to the DAR/DAO/ manufacturer.

The Minister's Delegate (Maintenance) (MDM) is good for two years. To be an MDM, one must follow a training course, have a clean record with Transport Canada and meet currency requirements within two years. The delegation may be limited, for example, to export, import, based on the experience one has in industry.

A certificate of airworthiness (C of A) is based on type certification (standards that the aircraft is built to). Before issuance of a C of A, the aircraft must be repaired or the work done in accordance with the type certificate. The MDM must make sure the aircraft meets type certificate and any modifications. The AME certifies the aircraft. The MDM only checks it. The person certifying the work cannot issue the C of A, that is he cannot do both steps in relation to an aircraft. Any modifications can be subject to aircraft certification and if the modification is designed in a foreign country, the familiarization process ensures that it complies with Canadian standards.

Mr. John Richard Pollock has been the Superintendent of Investigations for Prairie and Northern Region for five years. He introduced Department of Transport files and Exhibits M-1 through M-5. It was the evidence of Mr. Pollock that he did not attend all informal conferences and he does not know the facts of each case. Mr. Pollock stated that the earlier Notices were issued to the company Canadian Aero Industries Ltd. (CAI) because Mr. Bancarz did not hold a Canadian aviation document at that time. He dealt with Alvin Bancarz except for the times when he dealt with the two AMEs, Mr. Frank Noseworthy and Mr. John Elliott who had signing authority. Mr. Pollock stated that old documents were destroyed after two years although the period was longer for some. He could not tell whether there was other information.

Mr. Barry Moscrop, who has been a civil aviation inspector since October 1986 and now works in Kelowna gave evidence for the Minister that when he worked in Edmonton as an Airworthiness Inspector he knew Alvin Bancarz and had minor dealings with minor investigations. He recalls that he had inspected an aircraft and records and suspended the C of A. He stated that Alf Gale was maintenance contractor who signed out Alvin Bancarz' work and that Mr. Moscrop had suspended Mr. Gale's licence for incompetence due to some irregularities found. None of the releases was signed by Mr. Bancarz nor did Mr. Moscrop have possession of any of Mr. Bancarz' records.

Mr. Jamie Melo testified that he has been the Superintendent of Aircraft Maintenance and Manufacturing at the Transport Canada Edmonton office since 1999. He stated that he knew Mr. Bancarz and that he had an AME licence with M1 and S rating from 1998 to May 22, 2004. He explained how and why the risk assessment had been conducted. Inspector Spak reported that he had been informed by Mr. Thomas, who had refused to issue a C of A for aircraft NQT following its import done by Altima Aero Industries Ltd. (Altima Aero), that structure repair had been done and that the aircraft was flying. After being so informed, Transport Canada checked to see what data was used for the repair and it was at this time that they questioned the ability of Mr. Alvin Bancarz to hold a licence. They determined in August that his licence had expired in May and they decided to contact him and let him know that they were looking at it. There was additional information regarding aircraft TPU for the installation by Mr. Bancarz of a co-pilot's door on the aircraft. The modification was done without data and it was not an airworthy aircraft.

The risk analysis was conducted on the history of enforcement actions. The issues were hypothetical and the panel saw the need to act diligently and not to wait until something happens. Mr. Melo stated that the risk assessment was facilitated by Fred Johnson of System Safety, and by Spak, Trainor and himself. Mr. Johnson was the facilitator and the rest of the panel, Mr. Trainor and Mr. Spak, both of whom report to Mr. Melo, had experience and background related to the area of maintenance. The panel met and looked to Exhibit M-13 and on this basis they concluded that the AME licence should not be reissued.

Mr. Melo also stated that one thing taken into account was the financial harm for people going through Mr. Bancarz and it was not in the public interest to reissue Alvin Bancarz a licence. He added that for TPU and NQT the work had to be done again as they were not airworthy. Mr. Robert Spak, a Civil Aviation Inspector for Transport Canada for 4½ years, and holding an AME licence since 1980 confirmed the foregoing evidence. He also stated that his first involvement with Mr. Bancarz was with the aircraft NQT, a Cessna 172 with a damaged wing. He suspended the C of A of the aircraft as the work done was not a recommended repair. He stated that at the end of the process it was unacceptable for Mr. Bancarz to continue to be licensed. If Mr. Bancarz had been holder of a licence, it would have been suspended or cancelled.

Mr. Bert Raymond Thomas, a competitor of Mr. Bancarz, has an AME licence and an MDM and is the owner of Thomas Aircraft Maintenance Ltd. He stated that he was asked to inspect aircraft NQT for issuance of a C of A. However, on cross-examination, the witness did not recall whether he was informed that the aircraft was ready for inspection at the time that he did his walk around, and took photos, filed herein as Exhibit M-14. He stated that he waited for Mr. Bancarz but it was not convenient and so he returned to Edmonton. He said that it looked like there had been damage as if something struck the wing across the bottom of the wing and it appeared to exceed the manufacturer's limits.

He refused to issue a C of A and met with Mr. Alvin Bancarz and the owner and discussed options to do repair and looked at scenarios. Alvin Bancarz showed him the American logs pertaining to this aircraft which were partially completed. Mr. Thomas stated that he was to return when the repairs were done but was never contacted again. He contacted Bob Spak to ask what to do and he was asked to put his concerns in writing (Exhibit M-22).

The next witness for the Minister was Mr. David White, who has been a Transport Canada civil aviation safety inspector in the Edmonton Office for aircraft maintenance and manufacturing since 2000 and has had an AME licence since 1980. He was principal maintenance inspector (PMI) for Altima Aero since 2001 and stated that Alvin Bancarz was the person responsible for maintenance (PRM) for the company. A PMI for the company is to ensure compliance and the PRM and PMI inspector for Transport Canada deal with day to day issues. He visited the company and did some surveillance visits and in 2002 had some quality assurance concerns regarding Altima Aero which was still a developing company. At this time, in February of 2002, a Notice of Suspension was issued but it was not in force as the company complied with the conditions prior to the effective date of the suspension. At the end of 2002 they had a quality assurance issue and an audit was conducted in March 2003 to deal with corrective actions. In July 2003, a Notice of Suspension of the AMO certificate went into force following a meeting with Gordon Robertson, Mr. Bancarz and Mr. White. They had good communication but not a corrective action plan by the company. In February 2004, the AMO certificate was cancelled under paragraph 103.07(d) of the CARs (service discontinued).

Mr. John Johnston holds AME licences M1 and M2 and is the owner of JayDee Aviation which has held an AMO for aircraft maintenance and avionics since 1965 and operated next door to Altima Aero. Regarding TPU, in the spring of 2004, he was contracted to do work on TPU for Reliance Airways / Dancal / Andrew Lake Lodge to find a way to get it flying again. In August or September, the aircraft was brought to their facility. Mr. Netskar, on behalf of Wipaire, specialists in aircraft modification, and Mr. Johnston completed the installation of the door (Exhibit M-35 - photos). These were done while at JayDee where they had the drawings and parts were removed as the installation did not conform to drawings. Wipaire reviewed the photos and they said a new kit was needed. The condition of the aircraft and evidence as to the installation of the door were confirmed by Mr. Donald P. Netskar who has been licensed as an AME for 20 years. His work consists of major modifications and structures only. He has had a contract with Cessna and Wipaire since the early 1980s on an ongoing basis. He has never added a new door at an outside facility except the one at Cooking Lake, Alberta for TPU as this is normally done only at the Wipaire facility. Regarding TPU, the owner of the aircraft contacted Wipaire as Transport Canada did an audit and found no paperwork to substantiate the major modification. Mr. Netskar was asked to inspect the aircraft and he brought drawings. He stated that he found nothing in the aircraft to be in accordance with the manufacturer and nothing done in accordance with directives. He said that there were a lot of home-made parts and parts taken from another aircraft which were incorporated into this aircraft and had incorporated double holes and it was not safe. The new installation was done by Mr. Johnston as AMO and it was installed according to Wipaire's standards and not according to WP4313 as Mr. Bancarz had reportedly done.

Mr. Alvin Bancarz gave evidence on his own behalf. He stated that since 1986 he had apprenticed in aircraft maintenance and worked as Manager at CAI, and was the owner of Altima Aero. His work was limited to singles, twin engine and aircraft under 12,000 pounds. He is 41 years old, and has held an AME licence (M1 and S) since 1998. His company also held an AMO until February of 2004 when it was cancelled by Transport Canada, as the service or undertaking in respect of which the Canadian aviation document was issued has been discontinued. Mr. Bancarz reviewed his relationship with Transport Canada inspectors whom he had dealt with over the years and the difficulties he had encountered. He reported that he had a good relationship with Gordie Robertson for 1½ to two years while he had an AMO but the relationship with Mr. White was strained and it was his view that Mr. White, as PRI for Altima Aero, was obliged to assist the company. Unfortunately, as is indicated in Exhibit M-28, he received an assessment of his response to audit findings as a simple reply of "Not acceptable" written 15 times without explanation. In that list, at least two of the corrective action plans had due dates which preceded the date of the demand letter which contained them. Mr. Bancarz stated that such a response was an insult and that he had no recourse at all. He said that as AME he had a licence for five years and he has records of 500 aircraft worked on and about 100 with no records, i.e. being aircraft releases.

Mr. Bancarz confirmed the evidence of Mr. Hougestol who had been called earlier on behalf of the Minister to give evidence as to CAI which was owned by Mr. Hougestol who had a pilot licence but was not an AME. He had said that Mr. Bancarz knew the business and did annuals and employed four to six people to assist him to work. He said that Mr. Elliott and Mr. Noseworthy were there as AMEs and the work was signed off by them as Mr. Bancarz was not a licensed AME until 1998. Respecting the Notices sent to CAI, Mr. Bancarz indicated that Mr. Hougestol would not contest any of the Notices and chose instead to pay them. It was also the earlier evidence of Mr. Hougestol that many of the Notices were initiated by the complaints of Mr. Johnston who operated as their competitor next door.

One document filed during Mr. Schmit's cross-examination of the witness Melo, and filed as Exhibit D-2, is a case report prepared by Investigating Officer Mitch Paulhus for an investigation which started on May 1, 2003 relating to an alleged contravention of subsection 571.06(1) of the CARs. The following paragraphs were taken from the synopsis of that report:

Altima Aero is an approved maintenance organization (AMO #68-99), which performs major sheet metal repairs, and maintenance rebuilds on aircraft under 5700 kg. Altima is located at the Cooking Lake airport in Alberta and is owned by Alvin Bancarz.

Mr. Bancarz holds a maintenance and sheet metal licence and was contacted in person on 06 June 2003 at his hangar.

It was discussed that Mr. Bancarz had installed a co-pilot door on aircraft GTPU, a Cessna 206, without a Supplemental Type Certificate (STC).

He stated he used the STC from an American registered aircraft N68RS. He did not want to provide the tech records until he checked with the owner for permission. A second visit was made to Altima Aero and Mr. Bancarz provided all documentation regarding the installation.

Mr. Dan Hyrnk (sic), from Aircraft Maintenance and Manufacturing was consulted regarding the transfer of the door to another aircraft. Mr. Hyrnk (sic) indicated it was permitted.

Further under the heading "Investigator's Comments":

Recommendation: NFA - No Offence

A review of the documentation reveals Mr. Bancarz followed the appropriate means by which to install the co-pilots door on aircraft GTPU and made the appropriate entries into the technical records.

And further under the heading "Supervisor's Comments":

I agree with the recommendation to conclude this file NFA. - No violation.

The note was signed above the name J.R. Pollock , Supt of Invest. 30 July 03.

The final notation in the EMS was under the heading "Edit Case Comments":

Case 50644

Recommendation: NFA - No Offence

A review of the documentation reveals Mr. Bancarz followed the appropriate means by which to install the co-pilots door on aircraft GTPU and made the appropriate entries into the technical records.

This notation was signed off by the Manager Jim Stewart and dated 1 Aug 03.

Mr. Hrynyk who testified for the Minister in relation to Exhibit D-2, regarding the last paragraph under the aforementioned synopsis, stated that he does not remember any of this conversation but it might have happened.

MINISTER'S ARGUMENTS

Ms. Laperle, for the Minister, summed up the evidence given on behalf of its 12 witnesses and implored the Tribunal to confirm the Minister's Notice of Refusal to Issue or Amend Mr. Bancarz' AME licence. She stated that in total the Minister's evidence was based on two aircraft that were not airworthy and that the Minister has an obligation to guarantee aviation safety. They did a risk analysis based on the two aircraft TPU and NQT and they heard from witnesses outside the Department of Transport. It was urged that the system is based on trust and must be based on reliable entries by the AMEs in the logbooks. Regarding Exhibit D-2 referred to above, the conclusion of no further action does not mean it is a blessing from Transport Canada.

She concluded that in addition to the risk analysis and the history of repetitive charges we should take into account the financial harm for people going through Mr. Bancarz as the work had to be redone. It was therefore not in the public interest to reissue Alvin Bancarz' AME licence.

APPLICANT'S ARGUMENTS

Mr. Schmit summarized his case by stating that the allegations are serious and concern the livelihood of Mr. Bancarz and are lifelong. He reiterated that his client has worked for many years and has worked on 500 to 600 aircraft. Transport Canada has no evidence that any of these aircraft were grounded on an immediate safety issue. Risk analysis was said to be based on hypotheticals, i.e. on assumptions that something may occur but these allegations of risk are without foundation. He urged that it is the obligation of Mr. White as PRI to help Mr. Bancarz and to work with him and further that Mr. Bancarz was described as being cooperative. He concluded by stating that Transport Canada has the onus in this matter and one must scrutinize the evidence of the Minister. For a finding in the public interest you must look to the contextual basis, the severity of the matter and the societal interest. There is no evidence that he posed as a danger.

DISCUSSION

The grounds cited below under the heading "Public Interest" include all grounds cited under the heading "Incompetence" in the Notice as issued, thus in the interest of brevity they are discussed only once under the heading "Public Interest".

PUBLIC INTEREST

The purpose of an AME licence is to assign the privilege of signing a maintenance release to competent persons. The maintenance release attests that applicable standards have been met, and hence the aircraft or aeronautical product conforms to its approved configuration and is in a condition for safe operation. The maintenance release is central to aviation safety because air operators and pilots rely upon it as proof that the released aircraft is safe. Clearly, the public interest in aviation safety requires that an AME be both technically competent, and trustworthy. Mr. Bancarz demonstrated technical competence in the ordinary manner, by meeting the standard requirements for an AME licence. His record clearly demonstrates an insufficiency of disposition to apply his technical skill and knowledge and make a maintenance release only when applicable standards have been met.

It is not in the public interest for a person whose maintenance release is not reliable to hold an AME licence. The following examples of maintenance released by Mr. Bancarz or performed under the direction of Mr. Bancarz demonstrate a record and pattern of unreliability that makes it contrary to the public interest for Mr. Bancarz to hold an AME licence.

  • September 1999 - Mr. Bancarz performed and released welding that was not done in accordance with an appropriate manual.

There is insufficient detail to be able to track this matter. Numbers 2 and 3 of Exhibit M-6, being the Airworthiness Surveillance Report, relate to welding matters regarding C-FQJI and SE-IEK although the dates are not cited. If this is the same matter cited above, it was resolved by Mr. Robinson giving Mr. Bancarz an oral counselling and the recommendation which is number 2 on the second page of the report that:

A letter should be sent to Mr. Bancarz reminding him of the procedures that are required to be followed whenever any welding is being done at his facilities, and how the aircraft are to be released, and also a request to change his work sheets to have a column for entering the date when work is accomplished.

As no right of review is attached to an oral counselling, it would not constitute part of a document holder's record and the balance of this matter seems to have been amicably resolved with the Minister undertaking to provide some advice to Mr. Bancarz by letter.

  • March 30 2001 - Mr. Bancarz performed maintenance on aircraft without completing required weight & balance amendments. He failed to make required entries in the technical record. He was assessed a license suspension for an offence under Section 571.03 and a monetary penalty for an offence under 605.94 (1).

I can find no record of the foregoing. There is a copy of a revised Notice of Assessment of Monetary Penalty dated March 28, 2001 which relates to an allegation of contravention of CAR 571.03(a) on February 24, 2000 which was contained in the earlier Notice dated January 22, 2001. This revised Notice was apparently prepared to reflect the settled amount of $100.00 although we have no idea what the original amount was assessed to be. This does not appear to be the allegation cited above as the penalty above was cited to be a suspension for the offence under section 571.03. There is just no material to support these allegations other than the proof of payment of $100.00 which by its small amount indicates that the Department did not view this as a matter of any significance. See also Exhibit D-3 which has the date of March 30, 2001 and informs that there will be no further action regarding an alleged violation of CAR 605.96(1) as set out in a letter of October 31, 2000. It does not seem likely that these are related matters and in any event was determined to be no further action.

  • January and February 2004
    • Mr. Bancarz signed an application requiring an AME signature when the application documentation did not represent the actual status of the aircraft, for the purpose of obtaining a Canadian aviation document.
    • Mr. Bancarz performed and released specialized maintenance not accomplished in accordance with an appropriate maintenance policy manual.
    • Mr. Bancarz performed and released maintenance that was not in accordance with the most recent maintenance manual or equivalent to those specified by the manufacturer or in accordance with recognized industry practices at the time the maintenance was performed.
    • Mr. Bancarz released maintenance when the details of the work were not properly entered into the technical records for the aeronautical product.

Exhibit M-8 is a copy of a Notice of Assessment of Monetary Penalty dated November 10, 2004 assessing a monetary penalty in the total amount of $500.00 for alleged breaches of CARs 571.03(a) and 571.04(a) relating to failure to enter details in the technical record of the aircraft and performance of specialized maintenance to the wing spar, both relating to aircraft C-GNQT. It is possible that Exhibit M-8 relates to the last three items above although the details of the above are omitted and while the aircraft is not mentioned, it is likely that this is the same matter.

  • September 1997 - Mr. Bancarz and/or persons under his control performed maintenance on an aircraft and proper technical records were not made. Canadian Aero Industries, an entity controlled by Mr. Bancarz, was charged under section 571.03.

No evidence of this date on record.

  • December 1997 - Mr. Bancarz and/or persons under his control removed an engine and installed a rebuilt engine. No technical records were made. Canadian Aero Industries was assessed a monetary penalty under section 571.03.

No evidence of this date on record.

  • March 1998 - Mr. Bancarz and/or persons under his control performed maintenance on a Part VII aircraft when the work was not performed in accordance with an appropriate manual. Canadian Aero Industries was assessed a monetary penalty under section 571.03 and 571.05.

Reference to this in EMIS case report as against CAI.

  • March 1998 - Mr. Bancarz performed maintenance on aircraft C-FIWF. He was not the holder of an AME license or other signing authority. No technical records were made. Sanctions were assessed for violations under section 571.03 and 571.05(a) of the CARs.

No evidence of this allegation against Mr. Bancarz on the record.

  • October 1998 - Mr. Bancarz was a principal of Canadian Aero Industries and performed aircraft maintenance. Neither Mr. Bancarz nor Canadian Aero Industries held required qualifications to perform or release the work, so Mr. Bancarz had other qualified persons sign maintenance releases. Investigation revealed that offences had occurred under Section 571.03 and 571.05(a) of the CARs. Canadian Aero Industries was not the holder of an AMO. Penalties were assessed against the company. Mr. Bancarz was central to these contraventions.

In its reference above under the date of October 1998, the Minister alleges that Mr. Bancarz was central to the contraventions which had occurred under section 571.03 and paragraph 571.05(a) of the CARs. Penalties were assessed against the company which was not the holder of an AMO. Mr. Pollock's evidence was that Mr. Bancarz was at the company at all relevant times but that it was two AMEs who had signing authority. Mr. Hougestol said that Mr. Bancarz was the Manager. He said that at this time Transport Canada laid a number of charges relating to work that had to be signed out by an engineer but more than anything it was paperwork and the company paid the fines. He said that Frank Noseworthy was there at the time of the charges but that none of them related to work that he had done. The work was done by Alvin Bancarz and others.

The Minister's representative presented 12 witnesses and 37 exhibits. The first four exhibits relate to administrative monetary penalties levied against CAI regarding work apparently completed on the aircraft cited in three copies of Notices of Assessment of Monetary Penalty and referenced in one EMIS report. The dates cited in the Notices related to allegations of June to August 1997 re GPTM, June to July 1997 re FJQM, May 9, 1997 re FIWF and May 3 to 23, 1997 re FIWF. It was the Minister's evidence that all four of these cases were settled by way of informal conference and this is confirmed in writing in a note signed by N. C. Muffitt and attached to the copies of the Notices. As these matters were settled, it is beyond my jurisdiction to question the contents or procedure used for these Notices other than to say that they were sent to CAI and the penalties were paid by Mr. Hougestol, the owner of the company which, as Mr. Hougestol testified, did aircraft repairs, engine work, framework and bodywork but did not hold an AMO. Mr. Hougestol also testified that Mr. Bancarz was the Manager of the company for much of the time and was an apprentice until he received his AME licence in 1998, but there is no specific link to Mr. Bancarz for the work allegedly done and not recorded, other than the reference that he was the Manager of the company at the time. It is regrettable that the summary of the informal conference is vague as we have no way of knowing the identity of the employee and the Manager is not implicated in this matter. The following paragraph is cited from the contents of the informal conference related to these four notices:

It was apparent that Mr. Hougestol had trusted his employee to run the operation within the regulations but had not factored in the fact that his employee lacked the experience and knowledge to function within the regulations. His manager who is subject of another penalty has since taken training and obtained a license pertinent to his duty.

It is not clear to me that one can attribute such responsibility to Mr. Bancarz based on the apparent conclusion of the writer of the note in the light of Mr. Bancarz' testimony that Mr. Hougestol would not contest these matters and chose to settle them instead.

Additionally none of the dates seems to line up as between the allegations under the heading "Public Interest" and the contents of the Notices filed as Exhibits M-1 through M-4.

Further Exhibit M-5 cites an alleged offence between June 1 and 23, 1998, the date of the Notice being April 30, 1999. This is not the original Notice but is a new Notice prepared as a result of the settlement conference which reduces the monetary penalty from $5,000.00 to $400.00. In the attached summary entitled "Informal Hearing", Mr. Muffitt, the author of the document, states that:

A very impressive plea (COPY ATTACHED HERETO) complete with supporting attachments was made by Mr. Goyer.

(Mr. Goyer is the enforcement officer who met with Mr. Hougestal for the informal meeting).

The key issues are: admission of guilt, acceptance of responsibility and expression of remorse. Mr. Hougestol was true to his word and when further infractions occurred he sold the company. He has already suffered large losses.

... The single largest factor in this great a reduction is the fact that CAI has been taken out of business.

The two allegations against the company were admitted by Mr. Hougestol, and the second was deemed by Mr. Goyer to be a technical violation at best. In fact, Mr. Goyer, in his summary of the mitigating circumstances, stated that:

It may be said, indeed even argued, that the work had not been yet completed and was still underway as a result of the PBI and CAI agreement on the status of the gear. The responsibility for the gear was with the owner, PBI, as they had directed CAI that they would be responding to certify the aircraft with wheel gear after installation.

And further in the synopsis of the settlement meeting, Mr. Goyer states:

Mr. Hougestol even paid the initial fine on behalf of his first AME/manager, Mr. Bancarz. Then to add insult to injury when the initial letter of notice of assessment of monetary penalty was issued on 02 March 1999 it went to the wrong address and person. The information was throughout Cooking Lake Airport before Mr. Hougestol received and knew about it. The information was received by Mr. Seth Melmock a competitor of CAI.

Therefore as a result of the foregoing we request that Transport Canada accept our plea of guilty to both charges, as we realize they are of a strict liability nature, and that TC would consider that the transgression was of a technical nature only. In keeping with this and bearing in mind all of the foregoing a token fine of $1.00 be assessed in each case.

Evidently, the assessment recommendation by Mr. Goyer of $1.00 was rejected and the penalties totalling $400.00 were accepted in lieu of the original assessment of $5,000.00. There is one reference to Mr. Bancarz, although the context of Mr. Goyer's statement is not clear.

Exhibit M-10 is not helpful as it is a list of contraventions which the Department has alleged were committed by Mr. Bancarz, but there is not sufficient proof for each of them, and in fact, many were not pursued except for those mentioned above. It is not enough for the Department to state that Mr. Bancarz has a history of aviation contraventions extending back some 20 years without more. The Minister's officials have not kept all records of their investigations and some have not been included because they were not "conveniently accessible". As for the material produced, notably related to the informal conferences, the sanctions have been mitigated or reduced to the realm of the insignificant. In one instance, where we do not have the original Notice but have a revised one, we note that the matter has been mitigated to the sum of $100.00.

It is on this basis that I am to be persuaded to confirm the Minister's assertion that Mr. Bancarz be refused reissue of his AME licence. The Minister states that the record of Mr. Bancarz clearly demonstrates an insufficiency of disposition to apply his technical skill and knowledge, and make a maintenance release only when applicable standards have been met. There have been a number of allegations, followed by explanations, followed by mitigations, but no complete record of non-compliance fixed upon Mr. Bancarz has been proved in this matter other than the $100.00 monetary penalty and the Transportation Appeal Tribunal of Canada certificate issued in the amount of $500.00 in 2005 for the allegations respecting NQT.

Exhibits M-12 and M-13 contain a summary report of risk management and the risk assessment prepared by the three-member team facilitated by Mr. Johnson of System Safety. The report contains assertions that would lead one to have grave concerns regarding aviation safety. However, these assertions are completely at odds with the Department's past dealings with Mr. Bancarz. For example, one of the two hypotheticals used in support of this risk assessment is an oblique reference to the co-pilot's door installed in aircraft TPU. While Mr. Melo stated that the two examples taken were indeed hypotheticals, they clearly relate to the two investigations concerning NQT and TPU.

The report of risk analysis states that Mr. Bancarz' clients were consulted. There is no evidence of this before me. There is evidence of at least two of Mr. Bancarz' competitors, companies where aeronautical products were taken for completion of work initiated by Mr. Bancarz related to the two hypotheticals cited.

On the basis of the way this case has unfolded, I can imagine Mr. Bancarz' surprise upon receiving the results of the risk analysis performed. Of the two hypotheticals mentioned above, one related to a matter which the Department had previously informed Mr. Bancarz would not be pursued further as they had accepted his explanation of the situation (Exhibit D-2) which was introduced during cross-examination of Mr. Melo and discussed herein at page 9 and confirmed in Exhibits D-1 and M-33.

This is the first time that the Tribunal has been requested to review the Minister of Transport's decision to refuse to issue a Canadian aviation document for reasons of incompetence or as not being "in the public interest" to do so. I refer to Can-Du Air Ltd. and Minister of Transport[1] which was an application in the Federal Court, Trial Division, in 1994 to quash a decision of the Minister of Transport who denied the applicant's request for certification of a heliport in Niagara Falls. While not being entirely on all fours with the present case, it does review "public interest" as being a consideration that must relate to other matters than the regulatory criteria for issue of a document. The findings therein clearly state that the issues for which the Minister is responsible as covered by the duties in section 4.2 of the Aeronautics Act are of a wide variety and include aviation safety. The court also found that in addition to relying on subsection 6.71(1) of the Act, its discretion to examine public interest is also vested in the other provisions such as sections 4.2 and 4.9 of the Act. In its discussion of the factors considered in the determination of the public interest, the court considered the expression of the policy of the Act as submitted by the respondent, Minister of Transport: development, regulation and supervision of all matters connected with aeronautics, in particular the maintenance of an acceptable level of safety. Subsection 6.71(1) provides another indication of a particular concern which is in the public interest; the aviation record of the applicant, clearly a reference to safety and compliance with aviation. Hence, it is entirely correct for the Department to produce the history or record of the applicant's past contraventions in establishing its concern for the public interest. The public interest as asserted by the Minister is a societal interest that relates to the protection and safety of the public and the users of the system as part of its policy regarding the development, regulation and supervision of all matters connected with aeronautics, and the maintenance of an acceptable level of safety.

The Minister has stated that it is not in the public interest for a person whose maintenance release is not reliable to hold an AME licence. And further that the examples of maintenance released by Mr. Bancarz or performed under the direction of Mr. Bancarz demonstrate a record and pattern of unreliability that makes it contrary to the public interest for Mr. Bancarz to hold an AME licence. I agree with these statements and would confirm the Minister's decision had the Minister provided proof for them. At the very least I would have expected a complete EMIS report covering the last 20 years that the Minister has referenced above.

To establish incompetence or public interest concerns, it is not enough for the Minister to make allegations or statements without adequate proof where the consequence is to terminate someone's career with an action that is tantamount to cancelling a licence. In the light of all of the mitigations and explanations accepted by Transport Canada in these matters, is it fair that Mr. Bancarz, who had always been characterized as "cooperative" must now find another career because the Department's officials have had enough.

I note the Marin case[2] referred to by Ms. Laperle discusses a matter of a suspension for incompetence where the AME in question was allegedly not aware of his responsibilities and he did not have a clear understanding of the requirements of his licence for certification. In that matter, the Minister's witness, Mr. McNab, attested to this fact following very detailed evidence given to support the allegations. It is worth noting as well that the Tribunal Member, Mr. Mortimer, comments on portions of the Minister's evidence as being unsubstantiated statements, incomplete explanations and sweeping statements, one of the problems which plagues the present case. In Marin, there was sufficient proof for a finding of incompetence as the AME showed "a deficiency of disposition to use his abilities and experience properly". That case as well as the two others cited, being Lafayette and Poole[3], differ from Mr. Bancarz' case in that a suspension for incompetence has conditions for reinstatement and thus the document holder is able to requalify.

In Mr. Bancarz' situation, the matter is more serious as the Minister has decided that Mr. Bancarz is not competent to hold a licence and further that his dossier or record with Transport Canada is a further ground for this decision. In such circumstance, there are no conditions for reinstatement, leaving Mr. Bancarz with little hope of ever regaining his licence which would be equal to a cancellation as opposed to a suspension under section 7.1 of the Act.

It must be said that in no measure do I believe that the work done by Mr. Bancarz was always done according to airworthiness standards as required. However, by reason of the mitigations and settlements accepted by Transport Canada, I do not believe that the gravity of the offences was communicated to Mr. Bancarz until he received the Notice of Refusal to Issue which is the subject of this application. In my view, Exhibits D-1 and D-2 exonerate Mr. Bancarz regarding aircraft TPU. Exhibits M-27 to M-30 relate to the AMO of Altima Aero of which Mr. Bancarz was a principal and while I believe that they would be relevant to the reissue of an AMO, it is my view that they should not be given such weight in this case as to deprive Mr. Bancarz of ever acquiring an AME licence. Accordingly, 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.

CONCLUSION

The matter is referred back to the Minister for reconsideration of the decision to refuse to issue Mr. Bancarz' AME licence.

September 20, 2005

Faye Smith
Chairperson
Transportation Appeal Tribunal of Canada


[1] Can-Du Air Ltd. v. Canada (Minister of Transport), [1994] F.C.J. No. 429.

[2] Elias Ruben Marin v. Minister of Transport, review determination, [1995], W-0240-04.

[3] Daniel L. Lafayette v. Minister of Transport, review determination, [1990], C-0163-02

Michael James Poole v. Minister of Transport, review determination, [2000], P-2083-02.


Federal Court of Canada (T)


Decision:

Date: 20070427

Docket: T-122-06

Citation: 2007 FC 451

Ottawa, Ontario, April 27, 2007

PRESENT:   The Honourable Mr. Justice Phelan

BETWEEN:

ALVIN BANCARZ

Applicant

and

MINISTER OF TRANSPORT

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

I. OVERVIEW

[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.

"Michael L. Phelan"

Judge

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

REASONS FOR JUDGMENT

AND JUDGMENT:   Phelan J.

DATED: April 27, 2007

APPEARANCES:

Mr. Anthony Schmit

FOR THE APPLICANT

Ms. Christine Ashcroft

FOR THE RESPONDENT

SOLICITORS OF RECORD:

CHOMICKI BARIL MAH LLP

Barristers & Solicitors

Edmonton, Alberta

FOR THE APPLICANT

MR. JOHN H. SIMS, Q.C.

Deputy Attorney General of Canada

Edmonton, Alberta

FOR THE RESPONDENT