Decisions

CAT File No. C-1705-10
MoT File No. 5258-5343

CIVIL AVIATION TRIBUNAL

BETWEEN:

Air Nunavut Ltd., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 7, 7.1(1)b), 37

Tribunal Jurisdiction, Suspension, Hearsay, Evidence, Duty of Fairness, Aviation Safety, Air Operator Certificate


Review Determination
Allister W. Ogilvie


Decision: December 4, 1998

The Minister has established on a balance of probabilities that Air Nunavut Ltd. did not comply with the conditions subject to which the document was issued. I therefore confirm the suspension of Air Operator Certificate No. 7096.

A Review Hearing on the above matter was held Friday, November 20, 1998 at 10:00 hours at the Federal Court of Canada, in Winnipeg, Manitoba.

BACKGROUND

Air Nunavut Ltd. (Air Nunavut) is an air operator with a base in Iqualuit, N.W.T. Transport Canada personnel had been to the base on occasion to conduct audits and perform pilot proficiency checks. During visits in September and November 1998, Transport Canada inspectors became concerned regarding certain facets of Air Nunavut's operation. Further to their concerns, it was decided to suspend its operations.

Transport Canada sent Air Nunavut a Notice of Suspension dated November 6, 1998 issued pursuant to paragraph 7.1(1)(b) of the Aeronautics Act (Act). The Notice states in part:

Air Nunavut Ltd. no longer complies with the conditions subject to which the document was issued.

Air Nunavut Ltd. no longer complies with subsection 704.07(2) of the Canadian Aviation Regulations in that the company does not employ on a full time basis a Chief Pilot approved by the Minister pursuant to 704.07(2), (b), (ii) of the Canadian Aviation Regulations.

On November 13, 1998, a letter and a second Notice of Suspension were sent to Air Nunavut. It states in part:

Air Nunavut Ltd. no longer complies with the conditions subject to which the document was issued.

Air Nunavut Ltd. no longer complies with subsection 703.07(2) and 704.07(2) of the Canadian Aviation Regulations in that the company does not employ on a full-time basis a Chief Pilot approved by the Minister pursuant to 703.07(2)(b)(ii) and 704.07(2)(b)(ii) of the Canadian Aviation Regulations.

Air Nunavut Ltd. no longer complies with subsection 703.07(2) and 704.07(2) of the Canadian Aviation Regulations in that the company does not employ on a full-time basis a Maintenance Manager (Person Responsible for Maintenance) approved by the Minister pursuant to subparagraph 703.07(2)(b)(iii) and 704.07(2)(b)(iii) of the Canadian Aviation Regulations.

Air Nunavut Ltd. no longer complies with sections 703.02 and 704.02 of the Canadian Aviation Regulations in that the company indoctrination training, line indoctrination training, and initial and annual training for flight crew members was not completed as required by General Condition (d) of the Air Nunavut Ltd. Air Operator Certificate No. 7096.

Air Nunavut Ltd. no longer complies with subsection 703.07(2) and 704.07(2) of the Canadian Aviation Regulations in that the company does not employ on a full-time basis an Operations Manager approved by the Minister pursuant to subparagraph 703.07(2)(b)(i) and 704.07(2)(b)(i) of the Canadian Aviation Regulations.

PRELIMINARY MOTIONS

Inspector Ray Brown represented the Minister of Transport, and Mr. Michael Phelan represented Air Nunavut.

Motion 1

After the opening of proceedings, Mr. Phelan made a motion to have the second Notice of Suspension dated November 13, 1998 struck. Argument was presented by both parties.

Ruling on Motion 1

The Applicant's motion was granted. The Notice of Suspension dated November 13, 1998 was struck as being invalid.

Subsection 7.1(2) of the Act prescribes the information that a Notice shall include:

(2) A notice under subsection (1) shall be in such form as the Governor in Council may by regulation prescribe and shall, in addition to any other information that may be so prescribed,

(...)

(b) state the date, being thirty days after the notice is served or sent, on or before which and the address at which a request for a review of the decision of the Minister is to be filed in the event the holder of the document or the owner or operator concerned wishes to have the decision reviewed.

The wording of the section indicates that the notice shall include certain information. At (b) of the subsection, it is required that a date be stated, that date being thirty days after the notice is served or sent. In this instance, the Minister's second notice did not state a date that complied with the section but merely reiterated the date that was on the first notice. Thus, the notice was invalid and was struck.

Motion 2

The Applicant presented another motion asking that the first notice also be struck on the grounds that it too was deficient.

Mr. Phelan contended that only under section 7 of the Act could there be an immediate suspension and it had to be pursuant to a threat to aviation safety. As no mention of a threat to aviation safety was made in the notice, it was deficient. He said Air Nunavut was entitled to a notice and response before action was taken, which he asserts is contemplated by section 7.1 of the Act.

He advanced a Federal Court Case — Wapiti Aviation Ltd. v. Canada (Government of, and Minister of Transport)[1] in support of his argument.

Inspector Brown agreed that section 7 of the Act dealt with immediate threats but maintained that section 7.1 of the Act was the operative section here. As well, he said Wapiti could be distinguished on its facts.

Ruling on Motion 2

The Applicant's motion was denied. The Wapiti case is of limited assistance. The case also involved the suspension of an air carrier operating certificate and addressed the basic standards of administrative fairness expected in the circumstance. However, in that time frame (1986), the Minister's own representatives from another region performed the reviewing function. The case predated the current review structure provided by the Civil Aviation Tribunal wherein the administrative fairness functions of notices and hearings are statutory decreed by the Act.

Air Nunavut has misconstrued the import of sections 7 and 7.1 of the Act. In essence both deal with the suspension of documents because of safety concerns. Section 7 contemplates some act or action being done that would cause an immediate threat to aviation safety; whereas section 7.1 contemplates various scenarios whereby a document holder ceases to have qualifications which are imperative to aviation safety.

The qualifications for issuance and the conditions to exercise the privileges of a document are founded on the grounds that those qualifications are necessary for aviation safety. This has been long recognized and was aptly stated in the finding of the Moshansky Commission where it said:

The traditional and accepted method of regulating aviation safety is through operational and airworthiness legislation. In Canada, this legislation is contained in the Aeronautics Act, the Air Regulations, and the Air Navigation Orders. All operational regulations by their nature have a flight safety implication. Regulatory standards regarding pilot proficiency, licensing, maintenance facilities, operational control, and instrument flight rules, for example, are all designed to ensure an acceptable degree of operational integrity within the air transportation system and an acceptable level of safety. Nevertheless, it is the individual air carrier's prerogative to determine how it will meet the operational requirements specified in legislation.[2]

The Air Regulations and Air Navigation Orders have been subsumed by the Canadian Aviation Regulations (CARs) but the principle remains unchanged.

That both sections address safety concerns is also illustrated by the comparison of various sections. Neither section 7 nor section 7.1 of the Act contemplates a stay of the suspension pending review because of the safety concern [7(4), 7.1(4)].

This can be contrasted with section 6.9 of the Act which addresses a suspension or cancellation of a Canadian aviation document on the grounds that the holder of the document has contravened a provision of a regulation or order. Under subsection 6.9(4), a document holder may apply for a stay of such suspension until review of the decision. However, no stay is available if the member of the Tribunal is of the opinion that the stay would result in a threat to aviation safety.

That the suspensions under both sections can be immediate is recognized by the instruction to the Tribunal to hold a hearing forthwith, whereas under subsection 6.9(6) of the Act the Tribunal is instructed to appoint a time and place for the review of the decision, but the immediacy requirement is absent.

The last illustration of the operation of the sections is revealed by the powers given to the Civil Aviation Tribunal on review. Under subsection 7(7) of the Act a member may determine the matter by confirming the suspension or substituting the member's decision for that of the Minister. Subsection 7.1(8) of the Act constrains the member from substituting his or her opinion as it only allows a confirmation of the suspension or a referral of the matter back to the Minister for reconsideration. This recognizes that the Minister is the ultimate authority in making decisions in matters relating to document qualifications and competence, issues which are central to aviation safety.

EVIDENCE

The Minister adduced evidence through testimony of various Transport Canada personnel. Air Nunavut did not call witnesses on its behalf.

The questions posed by the case presenting officer were, on occasion, such that the answer elicited could be described as hearsay. Mr. Phelan objected to hearsay testimony throughout the proceeding.

The text The Law of Evidence in Canada[3] explains the concept of hearsay as follows:

Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein.

The rule against hearsay is an example of one of the many legal or technical rules of evidence developed for courts to help them accomplish their mandates. However, these rules do not necessarily serve the purpose of an administrative tribunal.

This has been recognized by providing a legislated exemption from the strict adherence to the legal and technical rules in the form of section 37 of the Act where it states:

37. (1) Subject to subsection (5), the Tribunal or a member thereof is not bound by any legal or technical rules of evidence in conducting any matter that comes before it or the member and all such matters shall be dealt with by the Tribunal or member as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

(...)

(5) The Tribunal or a member thereof may not receive or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.

The exemption from the legal and technical rules of evidence is because of the characterization of evidentiary rules as procedural. That evidence is to be considered a procedural matter is illustrated in the text of Hearings Before Administrative Tribunals[4]:

'Evidence' is considered, on the whole, to be a matter of procedure. It is an aspect of how one enforces or goes about bringing into effect one's rights rather than being a substantive right itself.1.2

As I have noted repeatedly in this text, administrative decision-makers are masters of their own procedure. They do not have to do things the way a court would do them. Subject to the dictates of statute law and natural justice, an agency has the authority to determine its own procedure. It follows, then, that because evidence is a matter of procedure an agency's mastery over its procedure means that it is not bound by the legal rules of evidence.

1.2 Wildman v. R. (1984), 14 C.C.C. (3d) 321 (S.C.C.); R. v. Bickford (1990) 51 C.C.C. (3d) 181 (C.A.).

It is clear from subsection 33(3) of the Act that the Civil Aviation Tribunal is the author of its own procedure.

(3) The Tribunal may, with the approval of the Governor in Council, make rules not inconsistent with this Act governing the carrying out of the affairs of the Tribunal and the practice and procedure in connection with matters dealt with by it. (Emphasis added)

That the technical rules of evidence do not apply to Tribunals is also expressed in Administrative Law in Canada[5] where it is stated:

Unless expressly prescribed, the rules of evidence applied in court proceedings do not apply to proceedings before an administrative tribunal. This is, in part, because tribunal members, being lay people, are not schooled in the rules of evidence and are expected to apply common sense to their consideration of evidence. It also reflects the public interest mandate of many tribunals.

That is not to say that no rules apply regarding evidence. The constraints on evidence found in the Act are that it must be fair and within the bounds of natural justice. The Tribunal cannot accept evidence that is inadmissible in a court by reason of any privilege under the law of evidence. Of course, the basic criterion is that it must be relevant. However, not all relevant evidence is of equal probative value. The hearing member must decide what weight to ascribe to relevant evidence.

Hearsay evidence can be of value, especially if verified or corroborated by other evidence or if it forms the corroboration of some other evidence.

On the foregoing basis, I overruled Mr. Phelan's repeated objections to hearsay.

The evidence adduced established that Air Nunavut held Air Operator Certificate #7096 dated 1996.10.10. The certificate confirms that Air Nunavut was allowed to operate Beech 200 and Piper PA31 aircraft, from a main base of Iqualuit, N.W.T. in operations between points in Canada.

The testimony of the witnesses established that through the normal regulatory oversight process the Minister had become aware of a situation at Air Nunavut that was a cause for concern.

In September of 1998, Inspector Penner was in Iqualuit to conduct pilot proficiency checks (PPC) including doing one on Mr. Burns, the chief pilot of Air Nunavut. Inspector Penner was made aware that Mr. Burns would no longer be acting as chief pilot. The inspector submitted a report of his activities dated September 29, 1998 (Exhibit M-5), the only relevant portion was that referring to Mr. Burns stepping aside as chief pilot.

During cross-examination, the inspector was shown a letter dated August 25, 1998 from Mr. Burns to Mr. Graham of Transport Canada, wherein Mr. Burns advised that as of August 31, 1998 he would be stepping aside as chief pilot of Air Nunavut and that Mr. Mahoney had submitted an application for the position of chief pilot. Inspector Penner stated that he had not seen the letter. Throughout the proceeding, the various witnesses denied receiving the document.

Mr. Ken Graham is the Superintendent of Flight Operations, Commercial and Business Aviation, tasked with oversight of Air Nunavut. In mid October, he received a request from Mr. Mahoney of Air Nunavut to send an inspector to Iqualuit to conduct PPC rides. Pursuant to that request, Inspector Lashbrook was sent to Iqualuit in the first week of November. Weather and aircraft availability thwarted the plan to do PPCs, so the inspector utilized his time to conduct a routine inspection of Air Nunavut. In so doing he became concerned over some training issues.

Inspector Lashbrook's inspection revealed that the pilot who had conducted Mr. Mahoney's training was not qualified to do so. The files of individual pilots indicated that some required training had not been accomplished. In conjunction with those concerns he became aware that the chief pilot, Mr. Burns, had not been on site for some time. He submitted a report of his observation of Air Nunavut dated November 12, 1998 (Exhibit M-6). The only portion of that report relevant to this proceeding is the reference to the training and to Mr. Burns' absence.

On cross-examination it was established that the inspector did not know to what extent Mr. Burns was, or was not, on site. It was also established that he knew of Mr. Mahoney's request to take the chief pilot position.

Inspector Lashbrook telephoned Inspector Risk with his concerns. Further to the conversation, efforts were made to locate and to speak to Mr. Burns. The answer to whether or not Mr. Burns was still chief pilot was an equivocal yes and no. On the information at hand Inspector Risk was of the opinion that a suspension should be issued.

Cross-examination elicited that the role of chief pilot was managerial, and that it was not unusual for a chief pilot to be away from site. The person assuming responsibility in his or her absence depended on the circumstance.

Mr. Graham, as Superintendent, made a recommendation for a notice of suspension. Based on information from his inspectors, he concluded that the company no longer met the qualification for a certificate. He personally did not have the authority to suspend the certificate. Mr. Beebe, the Regional Director, did.

Upon cross-examination of Mr. Graham, several pieces of correspondence were entered. There was a June 5, 1998 request by Mr. Mahoney to be reinstated to the chief pilot position (Exhibit D-2). Mr. Graham replied by letter of June 23, 1998 requesting a chief pilot nomination form be completed and querying the status of existing Chief Pilot Burns (Exhibit D-3). The pilot nomination form was forthcoming on June 24, 1998 (Exhibit D-4). Mr. Mahoney's request to be reinstated was also the subject of numerous telephone calls, wherein Mr. Graham stated that he would not support the request as Mr. Mahoney was also the operations manager.

Numerous questions were posed regarding the timing of the suspension, and why Mr. Graham did not make efforts to contact Mr. Mahoney before the suspension became effective. Mr. Graham had concluded that Mr. Burns had not been present for some time and that his experience with the company indicated such efforts would not be productive.

Mr. Beebe, Regional Director of Civil Aviation, was party to a telephone call by which his staff informed him of their finding and concerns in this matter. The Regional Director has the authority to issue a suspension, and on his staff's recommendation he issued the Notice of Suspension which is the subject of this hearing. He asserted that to allow the operation to continue would have been a failure to his duty to the public.

He allowed on cross-examination that he did not give the company a chance to respond before the Notice became effective.

THE LAW

Paragraph 704.07(2)(b) of the CARs:

(2) For the purposes of subsection (1), an applicant shall have

(...)

(b) managerial personnel who have been approved by the Minister in accordance with the Commercial Air Service Standards, are employed on a full-time basis and perform the functions related to the following positions, namely,

(i) operations manager,

(ii) chief pilot, and

(iii) where the applicant does not hold an approved maintenance organization (AMO) certificate, maintenance manager;

(...)

Paragraph 724.07(2)(b) of the CARs:

(2) Qualifications and Responsibilities of Operational Personnel

(...)

(b) Chief Pilots

(...)

(ii) Responsibilities

The Chief Pilots are responsible for the professional standards of the flight crews under their authority, and in particular:

(...)

(B) developing or implementing all required approved training programs for the air operator flight crews;

(...)

(G) the supervision of flight crews; and

(...)

Subsection 101.01(1) of the CARs:

"air operator" means the holder of an air operator certificate;

ARGUMENT

Inspector Brown argued that the time at which Mr. Burns ceased functioning as chief pilot was confusing. He pointed out that the general conditions of Air Operator Certificate 7096 at (i) required that the air operator notify the Minister within ten working days after any change in managerial personnel, but that it had been difficult to ascertain such a time. This was illustrated by the fact that Inspector Lashbrook found no one acting in place during his inspection.

Mr. Phelan's argument centred on the timing and justification for the action taken. He asserted that imposing an immediate suspension was unwarranted. The procedural aspects of any suspension must be heeded as a suspension's impact was immediate and real. The Minister was obliged to check and make certain before acting.

He referred again to the legal principle enunciated in the Wapiti case and also made reference to North Coast Air Services Ltd[6] which makes reference to rules for an administrative agency allowing an opportunity to be heard before a decision is taken.

A Civil Aviation Tribunal case, Liberia World Airlines v. Minister of Transport,[7] was also proffered. In that case an air carrier operating certificate had been suspended, and the presiding member found that the airline should have been given time to respond to the reasons given for suspension and that a few hours notice was not enough to have done so.

Mr. Phelan stated that as the chief pilot was a managerial role, the person need not always be on site. It was acceptable for an administrative person to be away, and a gap in administration could not be grounds for the action taken. In June, Mr. Mahoney had made attempts to get himself appointed to that position. By September, the situation must have been known by Transport Canada.

He also asserted that Transport Canada had formed an adverse impression of the company, but that it would be improper to act on other than objective grounds. The controversy between the company and Transport Canada was the real reason for suspension, he argued. In short, the action was really a pressure tactic to get dialogue with the company. The suspension was unreasonable and unfair, an improper exercise of discretion.

Rather than call to discuss the issue, the suspension was immediate, although there was no threat to air safety, no danger.

DISCUSSION

To justify the suspension of Air Nunavut's Air Operator Certificate, the Minister must prove that Air Nunavut no longer complied with the conditions of issue, specifically that it no longer had managerial personnel, approved by the Minister, employed on a full time basis performing the function related to the position of chief pilot.

In argument Inspector Brown stated that the time at which Mr. Burns ceased being chief pilot was confusing. This assertion is borne out by evidence. Mr. Burns' correspondence of August 25, 1998 to Mr. Graham states that he will be stepping aside as chief pilot effective August 31, 1998, yet Inspector Penner performed a PPC on him for Air Nunavut in late September. At that time Inspector Penner learned that Mr. Burns would no longer be acting as chief pilot.

During the inspection by Inspector Lashbrook, he gleaned personal knowledge that the chief pilot was not on site then and had not been for some time. Further, he discovered irregularities in training records and procedures at Nunavut, which included training being conducted by a pilot not qualified to train others.

Mr. Phelan objected to that evidence and to the admission of Inspector Lashbrook's report. The report is admissible as Inspector Lashbrook's personal findings. The training items and information regarding the chief pilot are relevant. Training items are relevant as, pursuant to paragraph 724.07(2)(b) of the CARs, the chief pilot's responsibilities include developing or implementing all required approved training programs for the air operator's flight crew. The inspection revealed that this facet was lacking, indicating that the functions related to the position of chief pilot were not being fulfilled.

Documentary evidence submitted by Air Nunavut showed Mr. Mahoney's desire and attempt to be instituted as chief pilot. The inference of such attempt is that Mr. Mahoney had or was contemplating replacing the then current chief pilot. I note there is no evidence of submission to the Minister of change of managerial personnel as required by the general conditions of the certificate (i).

Mr. Phelan argued that the chief pilot, a managerial person, need not always be on site. The cross-examination of Transport Canada witnesses revealed that there was no definitive time frame for personnel to be on site.

Much of Air Nunavut's argument centred on the issue of the timing of the suspension and requirement of the notice, rather then whether or not there was a chief pilot effectively in place.

Taken as a whole, the foregoing evidence does prove that, at the time of suspension, Air Nunavut no longer had a chief pilot employed on a full time basis performing the functions related to the position of chief pilot. The letter of resignation dated August 25, 1998 indicates his termination to be August 31, 1998, but Inspector Penner provided a check ride on him in September. There he again indicated his desire to "step aside." Inspector Lashbrook's report indicated that some key functions of a chief pilot (training) were not being accomplished. Mr. Mahoney was making repeated requests to fulfill the position as early as June 1998.

The Air Operator Certificate, on its face page states:

Certificate No. 7096

This air operator certificate is issued by the Minister pursuant to Part VII of the Canadian Aviation Regulations, under the authority of the Aeronautics Act and authorizes the types of services listed in Part I of this certificate, provided the Canadian air operator complies with the conditions and operations specifications of this air operator certificate.

The Minister may suspend or cancel this air operator certificate at any time where the air operator fails to comply with the provisions of the air operator certificate or to comply with the applicable provisions of the Aeronautics Act, the Canadian Aviation Regulations or for such other grounds as are set out in the Aeronautics Act.

The suspension or cancellation noted in the second paragraph falls into the category envisioned in section 7.1 of the Act. The words "may suspend or cancel" indicate that the Minister has discretion in the matter, but that such suspension may be "at any time where the air operator fails to comply..."

Mr. Phelan submits that the Minister's decision to take immediate action was unwarranted and unjustified. He argued that the company should have been told of the problem and given time to respond.

As discussed and illustrated by the earlier quotation from the Moshansky Commission, these regulatory standards are designed for aviation safety. The minimum qualifications whether for one individual or a company are the basis of the validity of the document. That can be illustrated by the Air Operator Certificate under general conditions where it states:

GENERAL CONDITIONS

An air operator certificate is issued subject to the following conditions, and shall remain valid, subject to subsection 6.71(1) of the Aeronautics Act, as long as these conditions are complied with:

(...)

(Subsection 6.71(1) of the Act deals with the refusal to issue a Canadian aviation document if the Minister is of the opinion that the public interest warrants it and is thus inapplicable here.)

The wording of subsection 6.71(1) of the Act makes clear that the certificate is only valid as long as the conditions are complied with. Although Mr. Phelan has argued that the Minister should have given time for a response, that would have the effect of allowing operations when the air carrier was not in compliance with the conditions of issue.

He has offered the case of North Coast Air Services Ltd.[8] as supportive of his contention. The case dealt with a commercial air carrier's opportunity to be heard before an amendment of the carrier's licence was instituted. The judge found that the rules of natural justice applied and, in addressing the exercise of the power to suspend, cancel or amend a licence, said that the Canadian Transport Commission could only exercise its power to amend the licence

...when it has formed its opinion that the public convenience and necessity so requires after it has afforded the licensee 'a fair opportunity for correcting or contradicting any relevant statement prejudicial to (his) view.'

Although this statement seems to support the contention, it must be distinguished. In 1972, the Canadian Transport Commission presided over the economic side of a highly regulated air transport industry. The issue in the case was the restriction of all Class 4 carriers from carrying passengers between points served by Class 1 or Class 2 carriers for the purpose of eliminating competition on routes, which is clearly an economic issue. In the case at hand the issue goes to the qualification of a licensee to hold a certificate, which is a safety issue rather than an economic issue.

In any event one need not go to 26-year-old case law to establish whether or not natural justice applies to a licence suspension under section 7.1 of the Act. That fact is specifically decreed in the legislation where it states at subsection (6):

(6) At the time and place appointed under subsection (5) for the review of the decision, the member of the Tribunal assigned to conduct the review shall provide the Minister and the holder of the Canadian aviation document or the owner or operator affected by the decision, as the case may be, with a full opportunity consistent with procedural fairness and natural justice to present evidence and make representations in relation to the suspension, cancellation or refusal to renew under review.

Mr. Phelan also cited a more contemporary case from this Tribunal, Liberia World Airlines v. Minister of Transport, which more closely addresses his contention. In that case, a Liberia World Airlines aircraft was operated into Canada, and Transport Canada conducted an inspection of it, concluding that it was not being operated in accordance with its Canadian Operating Certificate. Transport Canada advised Liberia World Airlines that the suspension would take effect some five to seven hours later.

As in the case at hand the suspension was pursuant to paragraph 7.1(1)(b) of the Act. The member referred the matter back to the Minister for reconsideration as he found the action taken to be "somewhat precipitous." In so doing he said:

I believe that Liberia World Airlines should have been given time to respond to the reasons given and that a few hours was not enough.

That statement supports Air Nunavut's position. However, that facet of the decision must be distinguished on the particular facts. The member also said:

I believe that had Transport known on the 25th of September what it now knows, its action to suspend the operating certificate of Liberia World Airlines might not have taken place.

In the case at hand, the evidence does not show that additional information had been brought forth that may have caused Transport Canada to alter its opinion.

The case does, however, illustrate the suspension under paragraph 7.1(1)(b) of the Act can take place on short notice, as in this case. As well, it shows that the procedural fairness and natural justice are provided by the Civil Aviation Tribunal hearing process.

In the result, neither of these cases persuades me to Air Nunavut's position.

DETERMINATION

The Minister has established on a balance of probabilities that Air Nunavut Ltd. did not comply with the conditions subject to which the document was issued. I therefore confirm the suspension of Air Operator Certificate No. 7096.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1] Federal Trial Reports, 5 F.T.R. at 266.

[2] Commission of Inquiry into the Air Ontario Crash at Dryden, Ontario, Final Report, Volume II, The Honourable Virgil P. Moshansky, Commissioner, at Page 747.

[3] J. Sopinka, S. Lederman & A. Bryant, The Law of Evidence in Canada (Toronto and Vancouver: Butterworths, 1992) at 156.

[4] R. W. Macaulay & J. L. H. Sprague, Hearings Before Administrative Tribunals (Scarborough: Carswell, 1995) at 17-2 — 17-2.1.

[5] Sara Blake, Administrative Law in Canada, 2d ed., (Toronto and Vancouver: Butterworths, 1997) at 50.

[6] [1972] F.C. at 404.

[7] CAT File No. H-1132-10.

[8] Supra, note 6.

[8] Supra, note 6.

[8] Supra, note 7.


Appeal decision
Faye H. Smith, Pierre Rivest, Samuel J. Birenbaum


Decision: April 13, 1999

The appeal is dismissed. We uphold the determination of the Tribunal Member at review and confirm the suspension of air operator certificate number 7096.

An Appeal Hearing in the above matter was held on Monday, February 15, 1999, at 333 Laurier Avenue West, 18th Floor, Hearing Room Number 2, Ottawa, Ontario.

BACKGROUND

The Minister of Transport issued a Notice of Suspension of Air Nunavut Ltd's air operator certificate number 7096 on November 6, 1998. This Notice, issued pursuant to paragraph 7.1(1)(b) of the Aeronautics Act, sets out the following grounds of suspension and conditions for reinstatement of the certificate:

Grounds for the Suspension or Cancellation

Air Nunavut Ltd. no longer complies with subsection 704.07(2) of the Canadian Aviation Regulations in that the company does not employ on a full time basis a Chief Pilot approved by the Minister pursuant to 704.07(2), (b), (ii) of the Canadian Aviation Regulations.

Conditions for reinstatement

1.  Air Nunavut Ltd. shall employ on a full time basis a Chief Pilot who has been approved by the Minister pursuant to subparagraph 704.07(2), (b), (ii) of the Canadian Aviation Regulations

2.  Air Nunavut Ltd. shall demonstrate to the satisfaction of the Minister that the company meets all the requirements for holding an Air Operator Certificate as identified under subsections 704.07(1) & (2) of the Canadian Aviation Regulations.

Material to the facts of this case is the fact that the Notice indicated that the suspension would be effective on November 7, 1998 and that the company, if it wished a review by the Civil Aviation Tribunal, should make application to the Tribunal by December 7, 1998. The company's agent filed a request for review on November 9, 1998 which was acknowledged by the Tribunal Registry on November 10th and on that date a Notice of Hearing was sent to the parties setting November 20, 1998 as the date for the review hearing.

On November 13, 1998 the Minister forwarded apparently by facsimile to either the Appellant or its counsel a second Notice of Suspension pursuant to the same section of the Act purporting to suspend the same air operator certificate. This Notice dated November 13, 1998 contained the same effective date of suspension of November 7, 1998 and also the same date of December 7, 1998 for seeking review by the Tribunal. The grounds for suspension and the conditions for reinstatement of the document differed from the November 6th Notice in that these were additional grounds and conditions which were more detailed in content. On November 16, 1998 the agent for the company sent this second Notice to the Tribunal asking that it be dealt with at the upcoming review.

The review was heard by the Tribunal on November 20, 1998 at which time Counsel for the Applicant, Air Nunavut Ltd., made a motion to have the Notice dated November 13th struck on the basis that it was defective on its face in that it purported to suspend a document retroactively. (i.e. effective date of suspension being November 7 predating date of Notice which was November 13.) The Minister's case presenter conceded the point and it was decided as a result of this preliminary motion that the Notice dated November 13, 1998 be struck and the matter proceeded solely on the Notice dated November 6, 1998. At some point during argument on this motion, the Minister's case presenter disclosed that he believed that the air operator certificate had been reinstated prior to the hearing date, a fact which was confirmed prior to the conclusion of the review hearing.

GROUNDS FOR APPEAL

The Tribunal Member's review determination dated December 4, 1998 confirmed the Minister's decision to suspend air operator certificate number 7096 on the basis that Air Nunavut Ltd. did not comply with the conditions subject to which the document was issued. From that decision Air Nunavut Ltd. appealed on the following grounds:

(a) that the Hearing Officer erred in concluding that the notice of suspension dated November 6, 1998 was a proper notice under the Aeronautics Act;

(b) that the Hearing Officer erred in concluding that the Minister's decision to immediately suspend Air Operator Certificate No. 7096 was proper and valid;

(c) that the Hearing Officer erred in determining that the Appellant was not entitled to the application of the principles of fairness or natural justice in respect of the Minister's decision;

(d) that the Hearing Officer erred in concluding that the only procedural fairness and natural justice to which the Appellant was entitled is that provided in the Civil Aviation Tribunal hearing process; and

(e) such further and other grounds as the Appellant may advise.

THE LAW

Subsection 7.1(1) of the Aeronautics Act:

7.1(1) Where the Minister decides

(a) to suspend, cancel or refuse to renew a Canadian aviation document on medical grounds,

(b) to suspend or cancel a Canadian aviation document on the grounds that the holder of the document is incompetent or the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to have the qualifications necessary for the issuance of the document or to meet or comply with the conditions subject to which the document was issued, or

(c) to suspend or cancel a Canadian aviation document because the Minister is of the opinion that the public interest and, in particular, the record in relation to aviation of the holder of the Canadian aviation document or of any principal of the holder, as defined in regulations made under subsection 6.71(2), warrant it,

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

Paragraph 704.07(2)(b) of the Canadian Aviation Regulations (CARs):

704.07 (1) Subject to section 6.71 of the Act, the Minister shall, on receipt of an application submitted in the form and manner required by the Commercial Air Service Standards, issue or amend an air operator certificate where the applicant demonstrates to the Minister the ability to

(...)

(2) For the purposes of subsection (1), an applicant shall have

(...)

(b) managerial personnel who have been approved by the Minister in accordance with the Commercial Air Service Standards, are employed on a full-time basis and perform the functions related to the following positions, namely,

(i) operations manager,

(ii) chief pilot, and

(iii) where the applicant does not hold an approved maintenance organization (AMO) certificate, maintenance manager;

(...)

Paragraph 724.07(2)(b) of the Commercial Air Service Standards:

(2) Qualifications and Responsibilities of Operational Personnel

(...)

(b) Chief Pilots

(...)

(ii) Responsibilities

The Chief Pilots are responsible for the professional standards of the flight crews under their authority, and in particular:

(B) developing or implementing all required approved training programs for the air operator flight crews;

(...)

(G) the supervision of flight crews; and

(...)

Subsection 101.01(1) of the CARs:

"air operator" means the holder of an air operator certificate

SUBMISSIONS AS TO THE FACTS:

Air Nunavut Ltd. is an air operator based in Iqualuit, and as such is subject to inspections by Transport Canada inspectors who, following visits to the company base in September and November of 1998, had concerns regarding some aspects of Air Nunavut Ltd.'s operation.

It was the submission of the Appellant's counsel that in June, 1998, Mr. Mahoney sought approval for himself to be named as chief pilot of the company. On August 25, 1998 a letter from the Chief Pilot Burns to Transport Canada indicated that he would be stepping down on August 31, 1998.

The Minister's representative states that in September of 1998 Inspector Penner went to Iqualuit to conduct pilot proficiency checks (PPC) one of which was for Mr. Burns the chief pilot of Air Nunavut Ltd. During this visit Inspector Penner learned that Mr. Burns would no longer be acting as chief pilot. Inspector Penner's report of this visit which was dated September 29, 1998 was submitted as Exhibit M-5 at the review hearing.

The Minister of Transport stated that it had not granted Air Nunavut Ltd. the approval to replace Mr. Burns with another chief pilot prior to the service of the November 6th Notice of Suspension of the company's air operator certificate.

The exchange of correspondence in June of 1998 regarding the nomination of Mr. Mahoney for approval as chief pilot is found in Exhibits D-2, D-3 and D-4. This is referred to at page 8 of the review determination where the Tribunal Member finds that Mr. Mahoney's request had been the subject of numerous telephone calls, wherein Mr. Graham stated that he would not support the request as Mr. Mahoney was also the operations manager.

Responding to a request made in October for the conduct of PPC rides Inspector Lashbrook visited Iqualuit on November 6, 1998. By reason of the weather and aircraft availability the PPC rides could not be done and thus the inspector conducted a routine inspection of Air Nunavut Ltd.

The Minister submits that during this inspection Inspector Lashbrook learned that the chief pilot Mr. Burns had not been on site for some time. Inspector Lashbrook contacted Inspector Risk and efforts were made to contact Mr. Burns who provided an equivocal yes and no answer to the question of whether or not he was still chief pilot. It was also determined that the functions of chief pilot were not being carried out, notably those related to pilot training responsibilities. On the advice and recommendations of these inspectors and Superintendent Graham, Mr. Beebe, the Regional Director who held the delegated authority to do so, signed a Notice of Suspension dated November 6, 1998 pursuant to paragraph 7.1(1)(b) of the Aeronautics Act. A second Notice dated November 13, 1998 purported to replace the earlier one.

GROUND 1

That the November 6, 1998 suspension was not in effect at the time of the hearing on November 20, 1998.

APPELLANT'S SUBMISSIONS

Counsel for the Appellant states that the November 6th Notice has reinstatement conditions l and 2 and condition 2 is a request for requalification for the air operator certificate. On November 13, 1998 another suspension notice was issued and the transcript at page 12 contains a statement by Mr. Brown that the November 6th Notice was open ended.

Counsel urges that the Minister has the power to issue and the power to rescind notices. The November 13th letter sent with the Notice from the Minister of Transport shows that it intended to replace the first Notice. The November 6th Notice was rescinded because Transport Canada knew it was defective and the November 13th Notice was struck at the review hearing. Appellant's counsel argues that Transport Canada cannot now say that the November 6th Notice is in effect because it cannot reinstate it.

Counsel's argument on this point differs from that offered at the review at page 6 of the transcript where he states:

We had, in fact, appealed the November 9th (sic)th and therefore we are entitled to a review of the November 9 proceeding because it will be our contention that the November 13th is null and void, that there is no process, nothing permitted in the statute, that allows the Minister, having issued a notice of suspension, to come along and cancel, replace, amend, vary, or otherwise change the notice of suspension that he had already issued.

Additionally at page 8 of the transcript referring to the November 13th Notice counsel argued that there was no purported reinstitution of the operating certificate and then a further suspension.

The suspension on November 6th is still in effect, all they are doing is superseding and replacing, purporting to cancel the grounds.

They are amending the grounds for the suspension; they are not changing the suspension.

There is nothing in the statutes that suggests, in any way, that there is power to amend or vary the grounds.

MINISTER'S SUBMISSIONS

The Minister's representative responded that the November 6th Notice was valid and the subsequent one does not invalidate it. The November 13th Notice was found to be invalid by the Tribunal Member and the fact that this second one was invalid did not void the first one which on its face it was valid. She further stated that the review proceeded with regard to the November 6th Notice and the evidence related to that Notice only.

DISCUSSION

Following a visit on November 6th by its officials at the premises of the Appellant company, the Department of Transport served a Notice of Suspension dated November 6th, pursuant to section 7.1 of the Act upon the company as set out in the background facts above. Upon receipt of this Notice the principal of the company retained the assistance of Mr. Parsons who informed the Tribunal Registry by letter of November 9th, that the company wished a review of the matter in accordance with its rights under the Aeronautics Act. The Tribunal Registry acknowledged this request and scheduled a hearing for November 20th and the parties were so notified on November 10th.

Apparently, the drafter of the November 13th Notice decided that the wording of the November 6th Notice was too open-ended, a fact which was made known to the Tribunal Member at the review hearing by the Minister's Case Presentation Officer at the outset of the review hearing. We are not told who drafted the second Notice and the Minister's case presenter does not enlighten the Tribunal regarding the rationale for the dates used in the second Notice. In any event, we do know that the November 6th Notice complies with the Canadian aviation document regulationsth and was served in accordance with the requirements of section 7.1 of the Act. We also know that the Tribunal became seized of the matter when the hearing was requested by the agent of the company on November 9.

We have a second Notice which is the same as the first one as to its first page in all material respects save for the date of the Notice which is set out as November 13th. The appendix attached as page two is more detailed than that of the November 6th Notice and it purports to add further grounds of suspension and conditions for reinstatement. We do not consider it necessary to review this aspect of the Notice. We do however wish to consider page one and the fact of the issuance of this second Notice.

What was the intent behind the drafting of this second Notice? Did the drafter intend to amend the first Notice or was the intent to issue and serve a second Notice in relation to the same matter? If the second Notice was intended to stand alone, we believe that it fails to do so for reasons aptly dealt with by the Tribunal Member. That is, being dated November 13th, it purports to suspend retroactively as it has an effective date of suspension of November 7th, which is impossible and the Notice fails if it was intended to stand alone.

One would have difficulty believing that the drafter intended that result. We could view the anomaly of the dates by stating that the drafter quite simply made a mistake in filling out the form. Although when we look to the facsimile transmittal date of the document bearing the Department of Transport facsimile number showing the time of day being 3:20 pm on November 13th, we appreciate that the document was faxed by the department to someone on that date. We do not have evidence of whether the facsimile was sent to Air Nunavut Ltd. or to its agent. What is clear is that whether to the company or to its agent, service of the Notice by facsimile is not good service according to the requirements of section 7.1 of the Act which requires service to be either personal or by registered mail. The agent of record, the firm of Osler, Hoskin & Harcourt forwarded the second Notice to the Tribunal by facsimile on November 16th asking that the matter of the second Notice be dealt with at the hearing scheduled for November 20, 1998.

The fact that the first page of the Notice was defective in that it purported to suspend retroactively and was not in compliance with the Act and the Canadian aviation document regulations and the fact that it was not properly served leads us to the conclusion that the Notice that was drafted under date of November 13th was never intended to be a stand alone Notice, rather that it intended to amend the first Notice. This avenue of analysis and conclusion which, being purely speculation or conjecture, is the only explanation for the contents of the Notice of November 13th given that it contained the original date of November 7 being the effective date of suspension and the fact that it was sent by facsimile in lieu of meeting the service requirements. Furthermore, all of the details on page one remain the same save for the date which was the date of the proposed notification of change or amendment proposal. Page two was entirely new and this would be the wording of the amendment sought. Let us turn now to the legality of this procedure.

On the facts of this case this procedure does not work either, whether one uses a letter of intent of proposed amendment to advise the other party in advance of the hearing or whether the party used a draft Notice identifying the changes, it would not work here because the party is seeking to add new grounds and such an amendment would likely fail, but in any event it is only an intent until the Tribunal Member at review rules on the proposal. Hence, in our view whether the department's officials intended the November 13th Notice to be a new Notice or an amendment to the first Notice, it would fail on both avenues on the facts of this case. We would note that there is one suggestion by the case presenter at the review hearing that the November 13th Notice was intended to be an amendment to the first one. At page 7 of the transcript he quotes paragraph 7.1(1)(b) and adds "Now that doesn't say that one cannot amend that" in reference to the sending out of the second Notice. Moreover, the Minister's representative does suggest that it was an amendment at paragraph 20.3 of the written submissions filed on the Minister's behalf at the appeal hearing.

The Notice of November 6th which was in compliance with the Act and the Canadian aviation document regulations regarding form and service was legal in all respects and on November 9th the company's agent requested the Tribunal to set a date for review and on this date the Tribunal became seized of the matter regarding the November 6th Notice. What is the effect of the November 13th Notice? Does it rescind and replace the first Notice as Mr. Stewart the author of the letter of November 13 accompanying the Notice would appear to state? At review the Tribunal correctly rejected the Notice dated November 13th as invalid and proceeded on the basis of the November 6th Notice. Whatever the intention of its drafter, the document dated November 13th was void on its face and that failure cannot be said to ouster or render invalid the legally constituted document of November 6th which was in the hands of the Tribunal for review at the request of the Appellant on November 9th. In conclusion, the Tribunal is of the view that the November 6th Notice was a proper notice under the Act and was in effect at the time of the review hearing. Hence the first ground of appeal fails.

GROUND 2

That if the November 6, 1998 suspension was in effect, it was defective on its face, and further that it was defective in that there was no right to have an immediate suspension without notice.

APPELLANT'S SUBMISSIONS

Counsel for the Appellant argues that if the November 6th suspension is in effect, then condition 2 of the conditions for reinstatement renders it invalid on its face. The first one was valid but the second condition was irrelevant because it was a requirement to make the company requalify for an air operator certificate. Counsel argued that the second condition cannot be severed because Air Nunavut Ltd. would have to requalify and the imposition of condition 2 renders it invalid because condition 2 was improper.

He further argued that it is not a valid suspension because no notice was given to Air Nunavut Ltd. and the suspension was made without giving Air Nunavut Ltd. any opportunity to make submissions. Section 7 is for an immediate threat to aviation safety and in the Notice alleging immediate threat you can see the legislative purpose and the Tribunal is to substitute its decision. In section 7.1 there is no reference to aviation safety, there is no requirement on the Minister to forthwith give notice and the Tribunal can only confirm or refer the matter back to the Minister for reconsideration. Appellant's counsel submitted that the review Member said that sections 7 and 7.1 were the same sorts of legislation and that both were immediate and he is wrong. He argued that if something becomes urgent and the operation is unsafe they would use section 7 immediately. Section 7.1 has no immediacy.

The Appellant argued that it was clear from the transcript that Inspector Lashbrook did not know the extent to which the Chief Pilot Burns was on site. He gave an answer that was an equivocal yes and no. That is all the department knew and they did not know the full situation at the time of the suspension. Appellant's counsel argued that the position of chief pilot was a managerial position only and if the chief pilot was absent then the function was delegated to someone else. Counsel thus concluded that the absence of a chief pilot did not produce an inherently unsafe circumstance. He stated that before making the decision to suspend, the department did not contact Air Nunavut Ltd. to find out the circumstances. On November 6, 1998 they had a meeting to issue a suspension and it was done at 5:00 p.m. at the end of the week and it had immediate effect. If they could wait eight hours why could they not have asked the airline what they were going to do, or what was going on. He argued that it was an improper purpose and an improper exercise of authority.

MINISTER'S SUBMISSIONS

The Minister's representative responds that the first condition set out in the Notice is clear and the second one is possible to actuate, and thus it is not invalidated.

In responding to the effect of the immediacy of the Notice she referred to Aztec Aviation Consulting Ltd. v. Canada[3]. In that case an operating certificate was suspended and shortly thereafter cancelled during an audit of the air carrier that took place following an accident. The suspension was effective immediately and the carrier brought an action seeking to overturn the suspension on the basis that the requirements of natural justice had not been followed in that he had not been given an opportunity to be heard.

22.2 The Federal Court judge upheld the validity of both the suspension and the cancellation. There seemed to be two reasons for this position.

The first was that until the matter had been disposed of by the Tribunal, there was no final decision regarding the suspension or cancellation so that the review procedures established under the Act met the requirements of natural justice.

In this connection, he pointed out that subsection 7(4) and 7.1(4) each provide that a request for review of the Minister's decision does not operate as a stay of the suspension thus indicating a Parliamentary understanding that the suspension might well be in force at the time of the CAT review [ It is also interesting to note that there is no comparable subsection in section 7 and 7.1 to subsection 6.9(4) which provides that an application for review does not operate as a stay of suspension but authorizes the CAT to grant such a stay. ]

The second was that during the audit, there was ample opportunity for the operator to make representations concerning the audit discoveries if the operator had wished to do so.

DISCUSSION

Given our finding on ground l above, we must now consider the two conditions of reinstatement. We are of the view that satisfaction of the first condition of reinstatement being the employment on a full time basis of a chief pilot who has been approved by the Minister would respond to the deficiency named in ground l, namely, that the company does not employ on a full time basis a chief pilot who has been approved by the Minister. In our view it is clear that once the deficiency cited in ground l has been satisfied, then the company was entitled to have its air operator certificate reinstated. Consequently, the second condition of reinstatement is redundant and being surplusage could easily be severed. We do not accept counsel's submission that inclusion of the second condition results in an invalid notice.

We agree with the submission of the Minister's representative that the distinction between sections 7 and 7.1 is that under section 7 the Notice of Suspension must be issued "forthwith" and there should be no delay in its coming into effect. The consequence of such action is obvious as the Minister could not after having ascertained an immediate threat to aviation safety condone its continuance. Under section 7.1 however, the Minister may delay the effective date of the suspension, though as the subject matter of these suspensions relate to such examples as failure to meet medical requirements for a licence or failure to have qualifications or to meet conditions of issue of a document as in the case of an air operator's certificate, it is incumbent upon the Minister to consider carefully the consequences of such delay in the interests of aviation safety.

The Minister's representative urged that the effective date of a suspension under section 7.1 as in the case before us is a policy decision made by the Minister. She also submitted that where criteria for an operating certificate are not being met, the power to suspend the document is necessary to preserve aviation safety, and since safety is concerned, the suspension may take effect immediately before the document holder is given an opportunity to be heard on the matter. The logic for this is set out in the discussion regarding Aztec[4], Liberia[5] and Dykstra[6] cases as quoted in the Minister's written submission and in the determination of the review Member.

We note that a review of the Tribunal's jurisprudence reveals that in circumstances where the document holder fails to meet qualifications or conditions upon which the document was issued, typically the operating certificate (now called air operator certificate) has been suspended per paragraph 7.1(1)(b) and in the majority of cases the effective date of suspension has been within hours of issuance of the Notice of Suspension.

On the facts of this case the suspension was to take effect approximately eight hours after the document was served on the Appellant company. The Regional Director, Mr. Beebe provides evidence of the rationale for his decision at pages 119 and 120 of the transcript where he stated that in his view to allow the operation to continue would have been a failure of his duty to the public from a public safety point of view. He further stated that he was thoroughly convinced that they were dealing with an unsafe operation.

The considerations and consequences of such decisions must be viewed against the Minister's obligations as regulator of the aviation industry. Those obligations were reviewed by the Federal Court[7] in a matter involving an air carrier accident which resulted in six fatalities and the Federal Court in its review said that the acts of the Minister's officials were found wanting where it was ascertained that the Minister had prior knowledge of an air carrier's deficiencies.

We concur with the Tribunal Member at review that section 7.1 must be interpreted to have immediate suspension and we are of the view that on the facts of this case, the suspension constituted a proper exercise of delegated authority.

GROUNDS 3 and 4

That the Appellant is entitled to procedural fairness both from the Tribunal and from the Minister of Transport.

APPELLANT'S SUBMISSIONS

Counsel for the Appellant stated that before you can issue a suspension under 7.1 there must be procedural fairness and you must pick up the phone before you issue the notice. The absence of a chief pilot does not have the immediacy of a suspension under section 7 of the Act, however there is nothing in section 7.1 that says that Air Nunavut Ltd. should be precluded from common law natural justice.

Counsel argued that the Tribunal Member erred when he found that natural justice principles only applied to the Tribunal and not to the Minister. He submitted that it does not have to be a full trial to be fair, they need only make a phone call. He argued that they had time for meetings, and had time to call the chief pilot and did not have time for calling the company. He submitted that the company had the right to be contacted, the right to common law procedural fairness.

MINISTER'S SUBMISSIONS

In response to the arguments regarding procedural fairness and the requirement for a "pre-notice notice", the Minister's representative submitted that the discretion of the Minister's officials was exercised and their evidence was that their further telephone calls would have no effect. She stated that we have oral evidence on record of Mr. Beebe and others who gave reasons which are within the discretion of those officials. The company has procedural rights to fairness and there is a balance between the rights of the state and those of individuals. The right to get a call is not an absolute right, it is a courtesy and in this case the Minister of Transport balanced the interests and decided to go forward based on the information and facts in its possession.

DISCUSSION

The difficulty with the argument put forth by Appellant's counsel is that an argument that the Minister has decided precipitously must be supported by evidence, notably evidence that there was a chief pilot. There is no evidence that there was a chief pilot at the time of the making of the decision or at the time of service of the notice. We do learn at page 13 of the transcript that this condition of reinstatement was met by the time of the hearing on November 20, 1998.[8]

The Liberia[9] case cited by the Appellant's counsel is distinguishable from the present case on its facts as there was additional information which was not in the possession of the Minister and which would have resulted in a different decision had the Minister had such information.

When rights or privileges are being taken away by an administrative body then administrative law and the rules of fairness and natural justice apply. These entail the right to notice of the case to be met, the right to be heard by a fair and impartial tribunal. The requirements for notice are either found at common law or are set out in the applicable statute.

We do not have to go to the common law for our notice requirements as the Aeronautics Act sets them out in very specific detail for us.

To illustrate the difference we can look to an example (albeit one that is now obsolete) from the Air Regulations made pursuant to the Aeronautics Act as it existed prior to the 1985 amendments to that Act.

Section 704 of the now defunct Air Regulations provided for the suspension of an operating certificate (now an air operator certificate) of an airline by the Minister of Transport as follows:

704. The Minister may cancel or suspend an operating certificate where

(a) the holder of the operating certificate has failed to conduct the commercial air service in a safe and proper manner or to maintain adequately the equipment required in connection therewith:

(b) the operation in respect of which the operating certificate was issued is discontinued; or

(c) the Minister, on reasonable grounds, believes the holder of the operating certificate has contravened

(i) any operations specifications,

(ii) any provision of these Regulations, or

(iii) any order or direction made pursuant to these Regulations.

While this section predated the institution of the Civil Aviation Tribunal there is ample authority for the fact that it did require that the Minister comply with the rules of natural justice to give notice, provide a hearing (oral or written) and meet all other exigencies of the rules. The requirements in such case were not set out in specific detail in the legislation and so were common law requirements, with the reasonableness of their application being subject to review.

With the 1985 amendments to the Aeronautics Act the suspension powers of the Minister of Transport relative to Canadian aviation documents were elevated from the Air Regulations to being set out specifically in the Aeronautics Act. These requirements are thus statutory and we need not look to common law for guidance.

The Minister must meet the specific requirements of natural justice dictated by the Act regarding Notice, form of notice, disclosure of the case to be met. A challenge to the Minister's decision to suspend may be made in the form of a review by the Civil Aviation Tribunal which must be equally vigilant respecting the rules of natural justice in granting the Applicant a right to be heard by an independent and unbiased decision maker.

Appellant's counsel is correct in his assertion that the rules of natural justice apply both to the giving of notice by the Minister and to the Civil Aviation Tribunal's review hearing and had the Act not specifically provided for the requirements of natural justice, then the common law would apply.

We find, in our review and procedural analysis of the steps taken by the Minister's officials at the time of the issuance of the Notice of Suspension and the subsequent review provided by the Tribunal, that the specific requirements of the Act were respected in all interests of fairness and natural justice. As no reviewable error was made, we uphold the determination made by the Tribunal Member at review.

DETERMINATION

The appeal is dismissed. We uphold the determination of the Tribunal Member at review and confirm the suspension of air operator certificate number 7096.

Reasons for Appeal Determination by:

Faye Smith, Chairperson

Concurred:

Pierre Rivest, Member
Dr. Samuel Birenbaum, Member


th The date of November 9 was corrected to November 6th later on that same page of the transcript.

[2] Section 103.06 in Division III of the Canadian Aviation Regulations.

[3] (1990) 33 F.T.R. 210, [1990] F.C.J. No. 154.

[4] Supra, note 3.

[5] CAT File No. H-1132-10.

[6] CAT File No. W-0213-04.

[7] Swanson Estate v. R., [1990] 2 F.C. 619; affirmed [1992] 1 F.C. 408 (C.A.).

[8] See page 13 of the transcript of the proceedings.

[9] Supra, note 5.