Decisions

TATC File No. H-3610-27
MoT File No. PAR 5802-311515

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Joseph Walsh, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 6.71


Review Determination
Elizabeth MacNab


Decision: April 15, 2010

Citation: Walsh v. Canada (Minister of Transport), 2011 TATCE 9 (Review)

Heard at Toronto, Ontario, on August 31, 2010

Held: I confirm the decision of the Minister to refuse to issue an aircraft maintenance engineer licence to the Applicant.

I. BACKGROUND

[1] On June 29, 2009, the Minister of Transport issued a Notice of Refusal to Issue or Amend a Canadian Aviation Document ("Notice") to the Applicant, Joseph Walsh. The Notice sets out the Minister's grounds for a refusal to issue to the Applicant an Aircraft Maintenance Engineer ("AME") licence on the basis that it would be contrary to the public interest. The grounds for this decision are set out in Appendix A to the Notice as follows:

The Minister has decided to refuse to issue an Aircraft Maintenance Engineer (AME) Licence to you for the following reasons:

  1. On May 5, 2006, you were convicted under paragraph 7.3(1)(a) of the Aeronautics Act of knowingly making a false representation for the purpose of obtaining an AME Licence by presenting to Transport Canada Civil Aviation (TCCA) a facsimile copy of a falsified AME Licence and requested the renewal of that falsified AME Licence.
  2. You attempted to obtain employment with Westjet and on March 2, 2004, TCCA was contacted by Westjet who requested the verification of a TCCA Historical Record issued to AME Licence number M3155802 (Joseph F. Walsh), and an AME Licence number 315802, signed by Mr. Joseph Walsh. A review of the facsimile copies of these documents identified that AME Licence number M3155802 and 315802 were not valid AME Licence numbers and that the documents were falsified.
  3. On March 4, 2004, TCCA contacted your current employer at that time, Skycharter Limited, and TCCA confirmed that the same two documents, identified above in paragraph 2, were used to gain employment with Skycharter Limited. In addition a third document was also used which was a Temporary AME Licence with the number 315802. After a review of a facsimile copy of this third document, it was determined that this number was not a valid Temporary AME Licence number and that the document was falsified as well.
  4. On December 16, 2004, TCCA contacted your former employer, Corporation Jetsgo/Jetsgo Corporation, and requested copies of your qualifications (résumé) that were used to gain employment with that company. That same day TCCA received facsimile copies of an AME Licence and Historical Record both containing Licence Number M319737. A review of the facsimile copies of these documents identified that AME Licence number M319737 was not a valid AME Licence and that the document was falsified.

The Minister believes that the above-noted behaviour establishes a pattern of falsification of documents that is incompatible with the responsibilities required to be performed by an AME Licence holder under section 571.10 of the Canadian Aviation Regulations. Therefore, the Minister is of the opinion that it is not in the public interest to issue an AME Licence to you.

[2] On July 24, 2009, Mr. Walsh requested that the Transportation Appeal Tribunal of Canada ("Tribunal") review the Notice.

II. STATUTES

[3] Paragraph 6.71(1)(c) of the Aeronautics Act ("Act") authorizes the Minister to refuse to issue a Canadian Aviation Document where, in his opinion, the refusal is warranted in the public interest. The paragraph reads as follows:

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

(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.

III. ADMISSIONS

[4] During an adjournment following the Minister's opening statement, the parties came to an agreed statement of facts. The document "Admissions" (Exhibit M-1A) sets out the agreed facts as admitted by Mr. Walsh:

  1. I worked for Skycharter from December 2003 to June 2004 as an Aircraft Maintenance Engineer (AME).
  2. I provided Skycharter with a résumé and documents showing that I was a licensed Aircraft Maintenance Engineer (AME). In fact, these documents were falsified as I was not a licensed Aircraft Maintenance Engineer.
  3. I worked with Jetsgo as of June 2004, and provided Jetsgo with a résumé and documents purportedly from Transport Canada establishing that I was a licensed Aircraft Maintenance Engineer. These documents are also fabricated as I am not and was not a licensed Aircraft Maintenance Engineer.
  4. I provided Transport Canada with a résumé and Transport Canada documents in March 2004. The licences I provided to Transport Canada were fabricated and the numbers are non-existent.
  5. I pleaded guilty to criminal charges in May 2005 and was fined $1,000 and have a criminal record with regard to the false representations made to Transport Canada in March 2004.
  6. I have subsequently received a pardon and no longer have a criminal record since June 28, 2010.
  7. I applied to Westjet in March 2004 and provided Westjet with a résumé and fabricated Transport Canada licences.
  8. I have never sat for the Transport Canada AME examinations despite three (3) applications in that regard.
  9. I agree to the filing before the Tribunal of the Exhibits listed in Annex A.

[5] On questioning by me, Mr. Walsh confirmed that he had agreed to the document "Admissions" (Exhibit M-1A) and to the admission of the Minister's Exhibits M-1 to M-24.

IV. EVIDENCE

A. Minister of Transport

(1) Jeffrey Phipps

[6] The Minister's sole witness was Jeffrey Phipps, currently Chief, Operational Airworthiness at Transport Canada. He explained that the decision to refuse to allow Mr. Walsh to write the required examination, that if completed successfully, would lead to the issue of an AME licence, was based on the Applicant's history of falsification of documents over a two-year period as outlined in the "Admissions" document (Exhibit M-1A). It was felt that these facts showed that Mr. Walsh lacked the necessary integrity to act as an AME.

[7] Mr. Phipps specified that integrity is important because the AME is responsible for determining the applicable standards relating to any maintenance and for ensuring the quality of work before signing a maintenance release. The release is relied upon by the aircraft operator and pilot as certifying that the aircraft is airworthy and safe to fly. In many situations, especially in relation to general aviation, an AME is working independently and, in these cases, it is extremely important that he be both knowledgeable with regard to the applicable standards and competent to perform the work. Officials felt that Mr. Walsh did not have the credibility necessary to meet these requirements.

[8] Mr. Phipps also testified that he had taken into account statements of Mr. Justice Forsyth in issuing his sentence determination on May 5, 2006 after the trial of Mr. Walsh (Exhibit M-23). In particular, he referred to the Judge's comments concerning the seriousness of falsely claiming to have an AME licence, which could lead to the possible signing of a maintenance release when he did not have the qualifications to do so, thus posing a critical threat to public safety.

[9] Further, Mr. Phipps testified that, while he had considered the effect of the refusal on Mr. Walsh's career prospects, the first priority must be public safety. He pointed out, however, that Mr. Walsh had worked in the industry for many years as an unlicensed individual and would still be able to do so.

[10] In answer to a question from me, Mr. Phipps said he was not aware of any occasion where Mr. Walsh had actually signed a maintenance release. This was most probably because the Aircraft maintenance organization system had not authorized him to do so while they were validating his credentials and by the time they were discovered to be false, he had left the organization. In answer to a further question, he stated that he was not aware of any occasion where Mr. Walsh had signed the log book of a private aircraft or acted as an independent AME.

[11] On cross-examination by Mr. Walsh, Mr. Phipps confirmed that he had never received any complaints from an employer that Mr. Walsh was doing unsafe work on an aircraft.

B. Applicant

(1) Joseph Walsh

[12] Mr. Walsh testified first on his own behalf. He apologized for what he had done and said that all he wanted to do was to be able to write the examinations for an AME licence and continue his career in aviation. He said that he had been blackballed in the industry. He pointed out that he had received a pardon for his conviction from the National Parole Board (Exhibit A‑1) and security clearance from the Halton Regional Police Service showing that he had no criminal record (Exhibit A-2).

[13] On cross-examination, he stated that he had worked in the aviation industry for an Approved Maintenance Organization under a crew chief for approximately 10 years since the late 1980s. During that period, he never signed a maintenance release. He further testified that he has not worked in the last two years except for one month in 2008.

[14] Under further questioning, he set out his employment history from 2005, the year of his conviction. Mr. Walsh said that he worked as an aircraft mechanic in Yellowknife for six to eight weeks for a company maintaining aircraft for First Air in 2005 and again for one week in 2007. In 2006, he worked for one month in Saskatchewan and in 2008 for one week in British Columbia. He had no work in 2009.

(2) David Forgie

[15] Mr. Forgie testified that he has known Mr. Walsh for about four years and has employed him on occasion to do non-aviation mechanical work on the horse training facility that he operates at Norval, Ontario. He said that Mr. Walsh was an excellent mechanic who was upset that he had been unable to find work in the aviation industry because of all the talk concerning him. He felt that Mr. Walsh had done all that he could to rectify his mistakes and should be given the opportunity to write the AME exams. In answer to a question from me, he said that he believed in Mr. Walsh's honesty and integrity.

[16] On cross-examination, Mr. Forgie explained that he felt the aviation world was a small one based on his conversations with pilots and air traffic controllers who boarded horses at his facility. In terms of Mr. Walsh's reputation, he said he had had many conversations, for example, with a load supervisor at Toronto Pearson International Airport, an air traffic controller and her husband who is a pilot. He also said that friends who had been trying to help Mr. Walsh to find work were "hitting a stone wall".

V. ARGUMENT

A. Minister

[17] The Minister argues that Mr. Walsh's record was evidence of "unreliability, dishonesty, untruths, weakness and lack of character" and that these are the opposite of the reliability and integrity required of an AME. He referred to a number of cases that stressed the critical importance of the maintenance release to aviation safety and thus the need for a person authorized to sign the release to be reliable and trustworthy.

[18] He also pointed to a number of cases that discussed the Minister's responsibility for aviation safety and the nature of the public interest in aviation. He explained that once the Minister had determined that it would be in the public interest to refuse to issue an AME licence to the Applicant, he had sent the Notice immediately so that Mr. Walsh would not write the requisite examination.

[19] The Minister suggested that little weight should be given to the testimony of Mr. Walsh and Mr. Forgie with regard to Mr. Walsh's difficulties in finding work. He pointed out the inconsistencies in Mr. Walsh's testimony regarding his work record since 2005 when under cross-examination. The Applicant stated several other occasions where he worked that he had not mentioned in his original testimony. There was also very little evidence concerning his attempts to find work. Mr. Forgie's evidence on this point was based on hearsay that was itself hearsay.

B. Applicant

[20] Mr. Walsh simply asked for the opportunity to write and pass the AME examination so that he could move on with his career in the aviation industry.

VI. ANALYSIS

A. General Analysis

[21] The Minister's power to make decisions that he considers to be in the public interest is a very broad one and based largely, although not exclusively, on his responsibility for aviation safety. In Bancarz  v. Canada (Minister of Transport), 2005, TATC file no. W-3058-27 (Review), the first time paragraph 6.71(1)(c) of the Act was considered by the Tribunal, the public interest was set out as follows:

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.

[22] That statement has been accepted by the Tribunal in several other matters before it. The Bancarz case dealt with the refusal to renew an AME licence and the Chairperson who heard the matter accepted the Minister's statement that "it is not in the public interest for a person whose maintenance release is not reliable to hold an AME licence". In the result, however, she referred the matter back to the Minister for reconsideration on the basis that the allegations on which the Minister's decision was based were either not proven or insufficient to justify a public interest refusal. After reconsideration, the Minister confirmed his original decision and this confirmation was the subject of judicial review by the Federal Court.

[23] In Bancarz v. Canada (Minister of Transport), [2007] F.C.J. No. 599, although the Federal Court's decision was based on a finding that the reconsideration had not met the requirements of fairness, it also discussed the nature of the public interest. In view of the newness of the public interest grounds for refusal, the Court reviewed prior Tribunal decisions relating to incompetence and concluded that these matters showed that "there must be either numerous incidents or major incidents with clear evidence of wrongdoing to justify suspension or cancellation". The Court went on to say that, while the Minister was not bound by decisions on incompetence in deciding what was the public interest, these decisions would have an impact in determining the "patent unreasonableness" or "reasonableness" of the Minister's decision.

[24] The factors that lead to the Minister's decision in this matter are not in dispute. Mr. Walsh has admitted that, on four occasions, he submitted false documents showing that he held an AME licence. On three of these occasions, he was seeking employment. On the fourth one, he submitted false documentation to Transport Canada seeking to upgrade his false qualifications. He was criminally charged with three offences under paragraph 7.3(1)(a) of the Act and, after pleading guilty to one of the charges, he was fined $1 000 which was accompanied by the registration of a criminal record. In explaining why he had decided not to conclude the matter with a conditional discharge, the Judge said:

In my opinion, it is hard to imagine a more critical area of public interest than aircraft maintenance. The unsuspecting members of the public, which probably include the vast majority of us who utilize air travel for either business or vacation purposes, are at the complete mercy of the quality of aircraft maintenance. Equally sobering are the predictable consequences of faulty workmanship in that area.

[25] Mr. Walsh has worked as an aircraft mechanic for some years and there was no evidence that his work in that capacity was in any way inadequate. In fact, the Minister's Exhibits include a letter from the government of Newfoundland and Labrador praising his work as an aircraft mechanic (Exhibit M-15). Nevertheless, the Minister maintains that his actions in falsifying documents demonstrate a lack of character and integrity that are incompatible with the integrity and trustworthiness that are essential qualities for an AME. These character flaws could well lead to situations where Mr. Walsh would be influenced by an unscrupulous operator to wrongly issue a maintenance release for an improperly maintained aircraft.

[26] During the hearing, there was some discussion of Mr. Walsh's employment opportunities. The Minister's position was that there is no barrier to his continuing as an aircraft mechanic working under the supervision of an AME. Mr. Walsh, on the other hand, has had difficulty in finding work and feels that he has been blackballed by the industry. He hopes to regain his reputation by obtaining an AME licence.

[27] Subsection 15(5) of the Transportation Appeal Tribunal of Canada Act provides that the standard of proof in a matter before the Tribunal is the balance of probabilities. The Tribunal must determine whether on that basis the Minister has shown that there is a public interest in refusing to issue an AME licence to the Applicant. According to the Minister, this conclusion is justified because the Applicant submitted false documents supporting his claim to have an AME licence on at least four occasions. Against this probability is the Applicant's otherwise spotless record as an aircraft mechanic and, in my view, his sincere repentance for his earlier misdeeds.

[28] There can be no doubt that the aviation history of the Applicant shows that he has acted in a manner that is contrary to the public interest in aviation safety. The use of false credentials certainly comes within the category of "major incidents with clear evidence of wrongdoing" set out by the Federal Court in Bancarz as justifying a suspension or cancellation of a document. The deliberate falsification of documents shows a wilful disregard for compliance with requirements that are meant to safeguard the safety of the public and an intention to profit from such disregard. In Bancarz, the Tribunal accepted the Minister's assertion that the reliability of a maintenance release is an important factor in determining whether the issue of an AME licence is in the public interest. In this matter, the Minister has also stated that an applicant for an AME licence should have integrity and credibility. While these characteristics are normally demonstrated during the licensing process, the Minister must take into account the public interest in determining whether to issue the document.

[29] In this instance, I find that the Applicant has not shown the reliability, integrity and credibility that is required of the holder of an AME licence. He has, in the past, deliberately deceived three employers or potential employers regarding his status and has even, in an action that shows an astounding lack of judgement, attempted to mislead the authority granting AME licences as to his status. In his argument, the Minister's representative pointed out that it was only on cross-examination that the Applicant gave a full account of his employment in the aviation industry over the past several years after testifying in chief that he had only been employed once in that capacity. The Minister suggested that this be taken into account in assessing the Applicant's credibility. It is, however, my impression that the Applicant did not intend to mislead in his testimony but was, understandably, under considerable stress. Nevertheless, his difficulties in recalling his employment history could be taken as an indication that under stress he may make mistakes.

B. Effect of a Pardon

[30] On June 25, 2010, the Applicant received a pardon from the National Parole Board (Exhibit A-1) pursuant to the Criminal Records Act, R.S.C. 1985, c. C-47. The pardon was given well after the date of the Notice was issued and so, the effect of the pardon could not have been considered by the Minister in reaching his decision. Nevertheless, the public interest is not a static concept and must be considered in the light of the circumstances existing at the time of each consideration. Clearly, the Minister would need to take its effects into account if the matter were referred back to him for reconsideration. I note, further, that the Tribunal, in making its determinations in the past, has taken into account factors that arose after a Notice was issued. For example, in the Review Determination in Nav Canada v. Canada (Minister of Transport) 2009 TATCE 24 (Review), TATC file no. H-3474-40, the then Chairperson of the Tribunal gave some weight to the fact that amendments had been published after the date of the Notice in reaching her conclusion that there had been no breach of the regulations (paragraph [22]). Following this reasoning, I have taken the pardon into account in reaching a determination in this matter.

[31] Section 5 of the Criminal Records Act sets out the effect of a pardon as follows:

5. The pardon

(a) is evidence of the fact that

(i) the Board, after making inquiries, was satisfied that the applicant for the pardon was of good conduct, and

(ii) the conviction in respect of which the pardon is granted should no longer reflect adversely on the applicant's character; and

(b) unless the pardon is subsequently revoked or ceases to have effect, requires the judicial record of the    conviction to be kept separate and apart from other criminal records and removes any disqualification or obligation to which the person so convicted is, by reason of the conviction, subject by virtue of the provisions of any Act of Parliament, other than section 109, 110, 161, 259, 490.012 or 490.019 of the Criminal Code or subsection 147.1(1) or section 227.01 or 227.06 of the National Defence Act, or of a regulation made under an Act of Parliament.

[32] In Kelly v. Canada (Minister of Citizenship and Immigration), 2006 I.A.D.D. no. 1956, the Immigration Appeal Division of the Immigration and Refugee Board of Canada considered the effect of a pardon granted after a deportation order had been made and concluded that the pardon invalidated the prior deportation order that had been based on the pardoned offence.

[33] The effect of a pardon was set out in Therrien (Re) [2001] 2 S.C.R. 3 where it was stated that:

An objective analysis of the Act does not support the argument that the pardon retroactively wipes out his conviction. While a pardon does not make the past go away, it expunges consequences for the future. The integrity of the pardoned person is restored and he or she need not suffer the effects associated with the conviction in an arbitrary or discriminatory manner.

[34] This effect could be contrasted with the effect of section 8.3 of the Act which sets out the procedure for the actual removal from an applicant's record of any notation of a document suspension or cancellation or of the imposition of a monetary penalty assessed against him.

[35] In Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse), [2008] 2 S.C.R. 698, the Supreme Court of Canada discussed the effect of a pardon and held that in evaluating a candidate for employment under the Police Act, R.S.Q., c. P‑13.1, s. 127, the requirement that the candidate be "of good moral character" should be distinguished from the requirement that there be no criminal record. A pardon does not erase the facts on which a criminal conviction was based and those facts may be considered in determining whether an applicant is of "good moral character". That determination, however, cannot be based simply on the existence of the pardoned criminal conviction. In the actual matter, it was held that the pardon raised a presumption that the candidate's "good moral character" had been restored, and since there had been no further consideration of the facts underlying the conviction, that presumption would apply.

[36] In Steinberg (Re) [1994] O.C.R.A.T.D. No. 134, the Ontario Commercial Registration Appeal Tribunal ("OCRAT") reviewed a decision of the Registrar of the Gaming Control Act refusing to register the Applicant as a gaming assistant on the basis that he had been convicted of bookmaking offences although he had later received a pardon. The relevant law required the Registrar to refuse to register an applicant if "there are reasonable grounds to believe that the applicant will not act as a gaming assistant … or with integrity, honesty, or in the public interest, having regard to the past conduct of the applicant or persons interested in the applicant". The OCRAT found that the Registrar was entitled to look at the convictions as past conduct of the Applicant and take them into consideration. However, the Registrar must also consider the fact that the National Parole Board issued the pardon.

[37] In applying these views to the situation of Mr. Walsh, the Tribunal finds that the effect of the pardon is to remove any moral taint that results from his conviction while leaving the facts behind that conviction as part of his aviation record. The Tribunal notes, moreover, that the charges under section 7.3 of the Act related only to his application to Transport Canada based on false documentation. The other three situations where he admittedly submitted false documents in support of his claim to be an AME remain as evidence of wrongdoing. The basis of the Minister's decision to refuse to issue the licence was not because the Applicant's behaviour could support punitive sanctions. It was rather based on the fact that his character lacked the necessary integrity and reliability that the public interest requires of an AME who would be responsible for determining whether an aircraft should be given a maintenance release.

VII. DETERMINATION

[38] I confirm the decision of the Minister to refuse to issue an aircraft maintenance engineer licence to the Applicant.

April 15, 2011

Elizabeth A. MacNab

Member