Decisions

TATC File No. Q-4088-27
MoT File No. 5802-917317

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Abdelaziz Msattef, Applicant

- and -

Minister of Transport, Respondent

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


Review Determination
Franco Pietracupa


Decision: November 24, 2015

Citation: Msattef v. Canada (Minister of Transport), 2015 TATCE 20 (Review)

Heard in: Montréal, Quebec, on September 3, 2015

REVIEW DETERMINATION AND REASONS

Held: The Minister has proven on the balance of probabilities that the applicant, Abdelaziz Msattef, failed to meet the qualifications or conditions necessary for the issuance of anaircraft maintenance engineer license.

I. BACKGROUND

[1] The Minister of Transport (Minister) issued a Notice of Refusal to Issue or Amend a Canadian Aviation Document (Notice) to the applicant, Abdelaziz Msattef, on August 11, 2014, pursuant to paragraph 6.71(1)(b) of the Aeronautics Act, R.S.C., 1985, c. A‑2 (Act). In Appendix A of the Notice, the Minister alleged that the qualifications or conditions necessary for issuance were not met or fulfilled, citing Standard 566 of the Canadian Aviation Regulations, SOR/96‑433 (CARs), and several inconsistencies in the application as grounds for this decision.

[2] On September 10, 2014, Mr. Msattef applied to the Transportation Appeal Tribunal of Canada (Tribunal) for a review of the Minister's decision.

II. STATUTES AND REGULATIONS

[3] The basis for the refusal to issue is established under paragraph 6.71(1)(b) of the Act:

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

[...]

(b) the applicant or any aircraft, aerodrome, airport or other facility in respect of which the application is made does not meet the qualifications or fulfill the conditions necessary for the issuance or amendment of the document; [...]

[4] Section 403.03 of the CARs elaborates on the qualifications and conditions necessary for the issuance of an aircraft maintenance engineer (AME) licence:

403.03 Subject to section 6.71 of the Act, the Minister shall, on receipt of an application submitted in the form and manner specified in Chapter 566 of the Airworthiness Manual, issue an aircraft maintenance engineer (AME) license to the applicant or endorse the applicant's AME license with a rating, where the applicant provides documentation to the Minister that establishes

(a) the applicant's citizenship; and

(b) that the applicant meets the requirements set out in Chapter 566 of the Airworthiness Manual in respect of

(i) minimum age,

(ii) training,

(iii) knowledge,

(iv) experience, and

(v) skill.

[5] Chapter 566 of the Airworthiness Manual (Standard 566), referenced in section 403.03 of the CARs, provides alternative training provisions under section 566.07:

566.07 Alternative Training Provisions

(1) Foreign Licenses

(a) Applicants who held, prior to 1 January 1990, a valid Inspection Authorization issued by the US Federal Aviation Administration, or a valid AME licence conforming to Annex 1 of the ICAO Convention, that included airframe and engine privileges, are exempt from the basic training requirement specified in Appendix A.

(b) Applicants who held, prior to 1 September 1985, a valid AME licence conforming to Annex 1 of the ICAO Convention, that included avionics privileges, are exempt from the basic training requirement specified in Appendix A.

(c) Applicants who held, prior to 1 September 2001, a valid AME licence conforming to Annex 1 of the ICAO Convention, that included structures privileges, are exempt from the basic training requirement specified in Appendix A.

(d) Applicants who hold a valid AME licence, other than one of the types specified in (a), (b) or (c) will be assessed in accordance with subsection (2).

[...]

(2) Other Basic Training

(a) Applicants who obtained their basic training through training systems other than a Transport Canada ATO (i.e. foreign, military, self-paced, distance learning, etc.), or who successfully completed a Transport Canada ATO course but failed to meet the experience credit requirement, shall submit their graduation certificate, together with a transcript of the training received to the applicable Transport Canada Center (TCC) for assessment. The training received shall be assessed against the pertinent specifications of section 566.03 of this standard and the following standards:

(i) The applicant shall have received a minimum of 1000 hours theory training applicable to the AME licence “M &E” ratings or 550 hours theory training applicable to the AME licence “S” rating, in order to be considered as having acceptable basic training.

(ii) The theory training will be evaluated in accordance with the specifications of this standard set out in Division II, Subdivision B, and the applicable provisions of Appendix C. However, the theoretical basic training need not contain a CARs component.

III. PRELIMINARY ISSUE

[6] At the beginning of the hearing, the Minister submitted a preliminary issue to the Tribunal. The Minister proposed that since the applicant was requesting the issuance of a Canadian aviation document (an AME licence), the burden was on the applicant to prove, on the balance of probabilities, that the Minister's decision to refuse to issue the requested licence was unreasonable. In support of this motion, the Minister referred to this Tribunal's decision in Gouin v. Canada (Minister of Transport), 2012 TATCE 36, TATC File No. MQ‑0108‑27 (Review), in which the parties agreed that the applicant was to present his evidence and arguments first. The present case was different, however, in that there was no agreement between the parties to proceed in this way.

[7] The Minister is responsible for applying and enforcing the Act and its regulations. When the Minister decides to refuse to issue a Canadian aviation document, the reasons and legal basis of this refusal must be provided to the applicant: paragraph 6.71(2)(b) of the Act requires the Minister to explain to the applicant the qualifications or conditions that are not met or fulfilled for the issuance of a document. The Act also allows the applicant to request a review of this decision by the Tribunal, but in no way does it place an onus on the applicant to prove to the Tribunal that the Minister's decision was unreasonable.

[8] In the case at hand, the grounds for the decision stated in Appendix A of the Notice were somewhat unclear and insufficiently detailed. To begin, the Notice cited Standard 566 of the Règlement de l'aviation civile (“Civil Aviation Regulations”) instead of the Règlement de l'aviation canadien (the correct French title of the Canadian Aviation Regulations). Secondly, the Notice did not specifically mention that Mr. Msattef was missing part of the 1,000 hours of training required by Standard 566.07(2), which was only explained at the hearing. Standard 566 and its appendices make up a lengthy document. When it is referred to globally as a justification for a Minister's decision, how is an applicant faced with a refusal to know exactly what element applies to his case? Given that the legislation provides no basis to the suggestion that the applicant at the review stage should have the burden of proof, it would be unreasonable to rule in favour of the Minister's motion, especially in a case where the applicant is self-represented and the government entity not only misnames the regulations it is applying but also fails to specify precisely what qualification or condition is missing from the application.

[9] At the hearing, I reserved my judgement on this issue and allowed the proceeding to continue. At this time, I rule that the Minister's preliminary motion is dismissed.

IV. EVIDENCE

A. Minister

(1) Marc Bisson

[10] Mr. Bisson is a Transport Canada civil aviation safety inspector and has occupied this position since 2007. Mr. Bisson confirmed that the applicant submitted to him an AME licence application and an AME licence application supplement, both dated May 9, 2014 (Exhibits M‑1and M‑2). Along with the two forms, the applicant provided various documents detailing his experience including a confirmation of his aircraft maintenance experience and training under his previous employer, Royal Air Maroc, and his AME licence issued by the Moroccan government (Exhibits M‑4 and M‑5).

[11] Mr. Bisson added that the only additional document requested by Transport Canada prior to evaluating this application was a copy of the applicant's passport in order to confirm his citizenship (Exhibit M‑3). Mr. Bisson explained that he then proceeded to evaluate all the documents submitted. Since Mr. Msattef's training and experience was obtained outside Canada, Mr. Bisson's role was to ensure that the applicant met the standards of the CARs in order to issue him the Canadian aviation document.

[12] The Minister introduced section 403.03 of the CARs, entitled “Issuance and Endorsement of AME Licence”(Exhibit M‑9). This provision refers to Chapter 566 of the Airworthiness Manual (referred to here as Standard 566), which establishes the level of experience, training, age, skill and knowledge required in order to validate and issue a Transport Canada licence. Mr. Bisson explained that Standard 566 defines the specific training that must be completed, along with the required number of hours for each subject matter.

[13] Mr. Bisson went on to explain that he had assessed the training received by the applicant against the required standards set forth in the Canadian regulations. As a result of his assessment, a Notice of Refusal to Issue a Canadian Aviation Document was issued on August 11, 2014, because the applicant did not have the qualifications or conditions necessary for the issuance of an AME licence. Mr. Bisson also mentioned that at the request of Martin Forget, the Minister's representative, a detailed internal evaluation report regarding the applicant's training and experience was completed and provided to the Minister on December 11, 2014 (Exhibit M‑10). Mr. Bisson confirmed that this document was not initially sent to Mr. Msattef.

[14] The evaluation was based on the requirements of Standard 566 in terms of the number of hours for each training syllabus and comparing these to the information found in the documents provided by Mr. Msattef in order to ensure that he met these requirements.

[15] As per Standard 566.07, the candidate required a minimum of 1,000 hours of training and experience on the different subjects listed. Mr. Bisson considered that, based on the documents submitted, only 560 hours of approved training could be credited toward the requested licence. As such, supplemental training would be necessary for Mr. Msattef to meet the required standards and qualifications to be issued an AME licence.

[16] Further issues were raised as to certain documents that were submitted by the applicant, in particular with regard to two letters from Royal Air Maroc detailing the level of experience and training received by Mr. Msattef (Exhibits M‑6 and M‑7). Mr. Bisson's concern was that the two letters bore two different names and signatures. As well, another letter sent by Royal Air Maroc (Exhibit M‑12) seemed to have a different logo stamp than the other letters received. Also, the Minister produced a record from an internal Transport Canada database showing that training provided by Royal Air Maroc had previously been assessed in the context of an AME licence application and had been considered to be insufficient (Exhibit M‑13).

[17] Lastly, Mr. Bisson stated that the diploma submitted by the applicant (Exhibit M‑8) referred to a “Mécanicien Equipement” (equipment mechanic) specialty and that this did not match the type of training that the applicant had conducted with Royal Air Maroc and the E rating (Avionics) requested by the applicant in his application to Transport Canada.

[18] Mr. Bisson concluded by saying that, regardless of these anomalies, based on the documentation submitted by the applicant, the minimum hours of training required by Standard 566 were not met and additional training would be required at a Transport Canada approved training program facility.

(2) Cross-examination of Mr. Bisson

[19] During his cross-examination of the Minister's witness, Mr. Msattef raised the issue of Exhibit M‑10. Mr. Msattef explained that this document had been sent to him by the Minister as part of the disclosure package only after the issuance of the Notice. Had it been sent earlier, he would have been able to provide documentation showing that he met the standards with regard to courses, hours and training. Mr. Msattef had this documentation with him at the hearing and wished to have it taken into consideration. Mr. Forget objected to this line of questioning and to the presentation of new documents as the review pertained to the decision contained in the Notice sent on August 11, 2014, based on documents submitted by the applicant up to that date.

[20] A discussion ensued, with the witness excluded, in order to properly address the issue. Exhibit M‑10, a document prepared by Mr. Bisson for the Minister, details the exact courses required as per Standard 566 in order to meet the standards to issue an AME licence and the hours credited to the applicant under each of the subjects. This document was sent by the Minister to the applicant as part of the disclosure process. Mr. Forget specified that disclosure of evidence was sent to the applicant on two occasions prior to the review hearing. Both times, the disclosure package did specify that Mr. Msattef could, if he chose to, communicate with Mr. Bisson should he have any questions regarding the Notice of refusal to issue. The applicant did not, on either of these occasions, reach out to Mr. Bisson. The Minister's objection to Mr. Msattef introducing new documents raised the fact that the decision to refuse a licence was based on documents provided by the applicant prior to the Notice being issued on August 11, 2014.

[21] I explained to Mr. Msattef that the Tribunal's review of the Minister's decision is in relation to the August 11, 2014 Notice. Thus all evidence provided, in order to be accepted by the Tribunal, must centre on this important timeline. If further documents and proof of training do exist now, then they should be submitted to the Minister for further review and analysis in the context of the applicant's request for an AME licence, but they cannot pertain to this particular review.

[22] As Mr. Bisson's cross-examination resumed, Mr. Msattef asked the witness to clarify what hours were missing in his training in order for his foreign licence's validation to be completed. Mr. Bisson responded that a total of 1,000 hours of training (broken down in the specified subjects listed in Appendix C, Part 3 of Standard 566) are required to obtain the requested Canadian aviation document. Mr. Bisson stated that he could only account for 560 hours based on the documents provided by the applicant.

[23] Mr. Msattef questioned why he had been credited with 0 hours of training (Exhibit M‑10) by Mr. Bisson in the “Moteurs à turbine” (turbine engines)category when the documentation he provided attests to 120 hours (Exhibit M‑7). Mr. Bisson responded that the hours of training by subject submitted by the applicant did not match the required subject description as per the Canadian standards. He went on to explain that 120 hours of training in “Technologie Avion et Propulseurs”does not meet the required hours of training in “Moteurs à turbine”.

[24] Mr. Bisson did however state that he would have required further detailed course curriculums from the applicant in order to properly assess the request and be able to verify that the courses taken were sufficient in relation to the course descriptions under CARs Standard 566, Appendix C, Part 3.

B. Applicant

(1) Abdelaziz Msattef

[25] Mr. Msattef testified that he is the holder of a Brevet supérieur de mécanicien avion from Royal Air Maroc, his previous employer. He explained that he had applied (Exhibits M‑1 and M‑2) to Transport Canada for an AME licence, rating E, on May 9, 2014, so as to be able to exercise his profession in Canada. He explained that several of his colleagues with the same background and experience had previously applied and were granted the licence based on their foreign certificate and experience.

[26] The application was filled in person at a Transport Canada office with supporting documents. The documents were accepted and no additional information was asked at that time. Mr. Msattef testified that he did have a more detailed document that specifically describes each training module he had taken at Royal Air Maroc, along with the hours for each course, but this document was never requested by Transport Canada.

(2) Cross-examination of Mr. Msattef

[27] Under cross-examination, Mr. Msattef was asked why he had not provided this more detailed document to Transport Canada at the time he had applied or not contacted Mr. Bisson with this information. Mr. Msattef explained that the only additional information requested by Transport Canada was for proof of citizenship. These were the only two times that the applicant had contact with Mr. Bisson.

[28] The Minister also asked Mr. Msattef why, once he had received the Notice dated August 11, 2014, he had not attempted to contact Transport Canada in order to try to resolve the issue. Mr. Msattef explained that the Notice provided him with only two options, either to accept the decision or to request a review with the Tribunal. Based on this, he made the assumption that the only recourse available to him was to request the review.

[29] Mr. Msattef confirmed that he did receive the disclosure documents prior to the review and that these documents provided written instructions as to the opportunity to contact Mr. Bisson should any further information be required with regard to the refusal. Again, Mr. Msattef stated that he believed that his only two options, as outlined in the Notice, were to either accept the decision or request a review.

V. ARGUMENTS

A. Minister

[30] The Minister argued that the refusal to issue a Canadian aviation document was based on two principal factors: a doubt as to the authenticity of the documents submitted and the lack of the required training hours in order to meet the conditions of CARs section 403.03. There is a minimum requirement of 1,000 hours and, at best, only 560 hours of training done by the applicant could be approved based on the information that was provided to Transport Canada at the time of application and leading up to August 11, 2014, the date the Notice was issued.

[31] The Minister submitted that the applicant did have opportunities to provide any additional information that would have clarified or help re-evaluate the application. These opportunities leading up to the date of the review were not taken.

B. Applicant

[32] The applicant did not provide a closing argument.

VI. ANALYSIS

[33] The Minister's grounds for the decision to refuse to issue a Canadian aviation document to the applicant are stated in Appendix A of the Notice dated August 11, 2014 (Exhibit M‑11). Out of the four items listed in Appendix A, based on the testimony and evidence heard, I disagree with the Minster on the first three items.

(1) Item 1: The diploma does not match the training documents provided by the applicant

[34] It would be difficult at best to try to make a correlation between, on one hand, the diploma issued by Royal Air Maroc (Exhibit M‑8) as it relates to the training received and, on the other hand, the validation requested by the applicant. The fact that the diploma refers to a Brevet supérieur de mécanicien avion and that the requested licence is in reference to Avionics was presented by the Minister as problematic. No documentary evidence or oral testimony from the Minister's witness leads me to this conclusion. A comparison of the standards in documentation and diploma issuance in the applicant's country of origin vis-à-vis our Canadian standards was not heard at the review. I simply cannot determine the validity of this ground for refusal based on the evidence provided.

(2) Items 2 and 3: The authenticity of the stamps and signatures is uncertain

[35] The Minster did not provide any evidence with respect to this concern other than a suspicion by Mr. Bisson. The documents provided by the applicant came from various departments and this can explain the differentiation in stamps and logo used. The Minister submitted that the name of the signing director appears differently on Exhibits M‑6, where it is spelled with an initial “M” (Mossair), and M‑7, where the first letter is “N” (Nossair). This can in fact be two different individuals or, in all probability, a typographical error. No evidence was submitted that a follow-up request for confirmation was made by the Minister. In my view, Exhibits M‑4, M‑6 and M‑7 are credible.

(3) Item 4: Training is insufficient

[36] I am inclined to agree with the Minister that the documents provided by Mr. Msattef did not demonstrate the required training as per section 403.03 of the CARs, which pertain to the issuance and endorsement of AME licences, and Standard 566.07, which deals specifically with foreign licences. The documentation, course descriptions, and possibly the format in which they were submitted to Transport Canada by the applicant did show significant differences with the training courses required and the hours needed for each of these courses. Item 4 on its own can justify the decision to refuse to issue an AME licence to the applicant as per the CARs.

[37] It is clear from Mr. Msattef's testimony that the required training may in fact have been completed but the necessary supporting documents had not been submitted to Transport Canada prior to the Notice being issued or afterwards. The Minister is correct in stating that this could have been done at any time before the review and that this opportunity was provided in writing to the applicant when the disclosure documents were sent. Mr. Msattef could have been more proactive in providing Transport Canada with the required follow‑up documentation. The applicant did testify that he lacked a basic understanding of process and that the Notice does not explicitly say that an individual can contact the authorities in order to rectify information or provide additional supporting documentation. He believed that he only had the alternative, once the Notice had been issued, to either accept the decision or request a review.

[38] As mentioned by Mr. Forget, the applicant is most welcome to re-apply—with additional information and documentation in support of this new request.

VII. DETERMINATION

[39] The Minister has proven on the balance of probabilities that the applicant, Abdelaziz Msattef, failed to meet the qualifications or conditions necessary for the issuance of anaircraft maintenance engineer license.

November 24, 2015

Franco Pietracupa

Member