Judgments

[1995] 1 F.C. 43

T-1869-93

In the Matter of a Reference by the Civil Aviation Tribunal of a Question of Jurisdiction to this Honourable Court Pursuant to Section 18.3 of the Federal Court Act, R.S.C., 1985, as Amended

Indexed as: Civil Aviation Tribunal (Re)

Trial Division, Noël J.—Ottawa, June 6 and 29, 1994.

Air law — Transport Minister placing “letter of counselling” advising of Air Regulations violation in pilot’s enforcement record — No penalty imposed — Pilot applying to Civil Aviation Review Tribunal for review — Minister challenging Tribunal’s review jurisdiction on ground restricted to decisions to suspend, cancel or refuse to renew Canadian aviation documents or to assess monetary penalties — Pilot recorded as having breached Act without commission of violation established in conformity with Act — Recording of violation having significant impact on rights, privileges — Minister not entitled to decide holder of aviation document violated regulations enacted pursuant to Part I without suspending document or imposing monetary penalty.

Questions were referred by the Civil Aviation Tribunal for determination by the Federal Court. In flying from New Hampshire to New Brunswick, the pilot of a Canadian registered aircraft allegedly deviated from the departure clearance given by air traffic control. The American authorities imposed no penalty but reported the matter to their Canadian counterparts. After investigating, the Minister of Transport did not impose a penalty, but placed a “Letter of Counselling” advising that the incident constituted a violation of the Air Regulations in the pilot’s enforcement record. The pilot sought a review of that finding by the Civil Aviation Tribunal. The Minister argued that the Tribunal had no jurisdiction to review the matter as its review jurisdiction was restricted to decisions to suspend, cancel or refuse to renew Canadian aviation documents, or to assess monetary penalties. It was submitted that the letter of counselling was not a determination that the pilot was guilty of an offence, but merely notice of allegation pursuant to subsection 7.7(1) of the Aeronautics Act, and that the Department was not going to seek a sanction for the contravention in accordance with the exercise of the Minister’s prosecutorial discretion. The Minister concluded that the actions were taken in conformity with his supervisory jurisdiction over aeronautics and in the interest of aviation safety. The Tribunal’s position was that the Act limits the administrative enforcement actions available to the Minister to those specified therein i.e. to suspend, cancel or refuse to renew the document or impose a monetary penalty. The questions for determination were: (1) having regard to the scheme of the Aeronautics Act, is the Minister of Transport entitled to decide that the holder of a Canadian aviation document has violated a regulation enacted pursuant to Part I of the Act, without suspending the relevant Canadian aviation document or imposing a monetary penalty not exceeding $1,000? and (2) if the answer to question 1 was yes, was the document holder entitled to a review of the Minister’s decision by the Civil Aviation Tribunal?

Held, question 1 should be answered in the negative and accordingly the second question need not be considered.

The statutory scheme revealed three significant features: (1) A sanction can be imposed only upon the establishment of the commission of the underlying infraction in conformity with the procedure prescribed by the Act, i.e. after the interested party has been afforded an opportunity to present his case before the Tribunal. (2) The Minister has the burden of establishing any ground of suspension or the commission of an infraction before the Tribunal, except a suspension based on medical grounds, in which case the document holder bears the burden of establishing that the ministerial decision was wrong. (3) The Act recognizes the Minister’s authority to maintain an enforcement record and the recording of the commission of an infraction in an offender’s record is an adjunct to a finding made in conformity with the procedure prescribed by the Act that an infraction has been committed.

The problem with letters of counselling is that they are issued on the basis that a provision of the Act or Regulations has been violated and the violation is recorded in the document holder’s enforcement record. The intent of the policy, to maintain a record of established violations, and the text of the letter of counselling, unambiguously stating that there had been a violation of the Air Regulations, contradicted the Minister’s position that a letter of counselling is merely a notice of allegation that an infraction had been committed. The subject of a letter of counselling is recorded as having breached the Act even though the commission of an offence has not been established in conformity with the Act.

The recording of a violation in a document holder’s record has a significant impact on the rights and privileges of the person affected. The right of appeal from a ministerial decision relating to record notations under section 8.3 recognizes that substantive rights are affected by a ministerial decision to maintain a record of a suspension or penalty beyond the two-year statutory period. Maintenance of these records of violations is important to the enforcement of the Act as a deterrent to reoffending and as a justification of a more severe penalty in case of a further breach. The interests at stake are such that the Act does not authorize the Minister to record an infraction unless established as provided for in the legislation.

Where an infraction is significant enough to warrant its recording, but not serious enough to warrant a monetary penalty, the Minister may assess a purely symbolic monetary penalty as no minimum is prescribed under the Act. This provides sufficient flexibility for the Minister to meet his policy concerns without taking away a document holder’s right to an independent review when confronted with an infraction under the Act. If the Minister’s position is that the nature of the infraction does not warrant providing a right to an independent review, then he is acting outside the ambit of the statute.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Aeronautics Act, R.S.C., 1985, c. A-2, ss. 6.6 (as enacted by R.S.C., 1985 (1st Supp.), c. 33, s. 1), 6.7 (as enacted idem), 6.8 (as enacted idem), 6.9 (as enacted idem), 7 (as am. idem), 7.1 (as enacted idem), 7.2 (as enacted idem), 7.3 (as enacted idem), 7.4 (as enacted idem), 7.5 (as enacted idem), 7.6 (as enacted idem; S.C. 1992, c. 4, s. 19), 7.7 (as enacted by R.S.C., 1985 (1st Supp.), c. 33, s. 1, 7.8 (as enacted idem), 7.9 (as enacted idem), 8 (as am. idem), 8.1 (as enacted idem), 8.2 (as enacted idem), 8.3 (as enacted idem), 26 (as am. idem, s. 4), Part IV (ss. 29-37) (as enacted idem, s. 5).

Air Regulations, C.R.C., c. 2, s. 548(2).

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 11(d).

Civil Aviation Tribunal Rules, SOR/86-594, s. 10.

Criminal Code, R.S.C., 1985, c. C-46, s. 717(2).

Designated Provisions Regulations, SOR/86-596, s. 3 (as am. by SOR/89-117, s. 1).

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.3 (as enacted by S.C. 1990, c. 8, s. 5).

CASES JUDICIALLY CONSIDERED

CONSIDERED:

R. v. Wigglesworth, [1987] 2 S.C.R. 541; (1987), 45 D.L.R. (4th) 235; [1988] 1 W.W.R. 193; 61 Sask. R. 105; 37 C.C.C. (3d) 385; 60 C.R. (3d) 193; 81 N.R. 161; Canada (Attorney General) v. La Ronge Aviation Services Ltd. (1988), 93 N.R. 234 (F.C.A.).

REFERRED TO:

Swanson v. Canada (Minister of Transport), [1992] 1 F.C. 408; (1991), 80 D.L.R. (4th) 741; 7 C.C.L.T. (2d) 186; 124 N.R. 218 (C.A.).

AUTHORS CITED

Canada. Commission of Inquiry on Aviation Safety. Report of the Commission of Inquiry on Aviation Safety. Ottawa: Supply & Services Canada, 1981 (Commissioner: Mr. Justice Charles L. Dubin).

Transport Canada. Regulatory Compliance Manual, 5th ed. Ottawa: Transport Canada, 1992.

On a REFERENCE for determination, the Court determined that the Minister of Transport is not entitled to decide that the holder of a Canadian aviation document has violated a regulation enacted pursuant to Part I of the Aeronautics Act, without suspending the document or imposing a monetary penalty.

COUNSEL:

James H. Smellie for the Civil Aviation Tribunal.

Lila Stermer for the Canadian Air Line Pilots Association.

Dan Cornell for the Canadian Owners’ and Pilots’ Association.

Terrence Joyce and Faye Smith for the Attorney General of Canada, Ministry of Transport.

SOLICITORS:

Osler, Hoskin & Harcourt, Ottawa, for the Civil Aviation Tribunal.

Gravenor Keenan, Dorval, Québec for the Canadian Air Line Pilots Association.

Cornell, Mortlock & Sillberg, Lindsay, Ontario, for the Canadian Owners’ and Pilots’ Association.

Deputy Attorney General of Canada for the Attorney General of Canada.

The following are the reasons for order rendered in English by

Noël J.:

INTRODUCTION

The Civil Aviation Tribunal (the Tribunal) refers the following questions to this Court by order dated July 20, 1993, pursuant to subsection 18.3(1) of the Federal Court Act, R.S.C., 1985, c. F-7 [as enacted by S.C. 1990, c. 8, s. 5], for hearing and determination:

1. Having regard to the scheme of the Aeronautics Act,[1] is the Minister of Transport entitled to determine or decide that the holder of a Canadian aviation document has violated or contravened a regulation or order enacted pursuant to Part I of the Act, without suspending or cancelling the relevant Canadian aviation document or imposing a monetary penalty or fine not exceeding $1,000 as the case may be?

2. If the answer to question 1 is yes, is the holder of the Canadian aviation document then entitled to have the Civil Aviation Tribunal review the Minister’s decision or determination that a violation or contravention of the regulation or order enacted pursuant to Part I of the Act has occurred?

The facts which gave rise to these questions are as follows. Edward W. Dobbins was the pilot of a Cessna 172 aircraft, of Canadian registration C-GJSE, flying from Laconia, New Hampshire to Saint John, New Brunswick, on November 15, 1991. Mr. Dobbins allegedly deviated from the departure clearance given by the air traffic control in Laconia. The U.S. aviation authorities did not impose any penalty but reported the matter to the Canadian authorities.

On June 24, 1992, after an investigation by the Minister of Transport (the Minister), Mr. Dobbins was advised by letter that the incident at Laconia, New Hampshire, constituted a violation of subsection 548(2) of the Air Regulations, C.R.C., c. 2, a provision the contravention of which may be dealt with under the procedure set out in sections 6.7 to 7.2 [as enacted by R.S.C., 1985 (1st Supp.), c. 33, s. 1] of the Act pursuant to section 3 [as am. by SOR/89-117, s. 1] of the Designated Provisions Regulations, SOR/86-596, P.C. 1986-1267 (hereinafter the Regulations). The Minister did not impose a monetary penalty or suspend Mr. Dobbins’ pilot privileges, rather he included this letter, characterized as a “Letter of Counselling,” in Mr. Dobbins’s enforcement record.

The agent for Mr. Dobbins wrote to the Tribunal on July 23, 1992, asking for a review of the finding of a contravention pursuant to section 10 of the Civil Aviation Tribunal Rules [SOR/86-594] as Mr. Dobbins maintained that no violation occurred and, in the alternative, that he had a valid due diligence defence. The Minister was advised of Mr. Dobbins’ application by the Tribunal on August 7, 1992. In his written response dated August 20, 1992, the Minister challenged the Tribunal’s jurisdiction to review the matter on the basis that no statutory sanction had been applied against Mr. Dobbins.

Thereafter, the Canadian Air Line Pilots Association (CALPA), the Canadian Owners’ and Pilots’ Association (COPA) and the Air Transport Association of Canada (ATAC) were invited to make submissions on the matter. Confronted with diverging views, the Tribunal opted, on July 20, 1993, to refer the above-noted questions to this Court for adjudication.

The Attorney General of Canada, CALPA and COPA each filed notices of intention to participate in these proceedings, made written representations and were represented by counsel during the hearing before me.

POSITION OF THE PARTIES

First Question

The Tribunal and CALPA argue that the first question is to be answered in the negative. The Tribunal submits that the authority of the Minister to suspend, cancel or refuse to renew a Canadian aviation document or impose a monetary penalty is specifically outlined in the Act, and that in each such case, it has the authority to review the Minister’s decision. It submits that its jurisdiction is exercised on two fronts, namely, by reviewing and determining whether the alleged contravention has taken place and by reviewing the propriety of the sanction or penalty imposed by the Minister.

On the face of the Act, the Tribunal submits that it is not apparent that the Minister is entitled to determine that the holder of a Canadian aviation document has contravened a provision of the Regulations without suspending, cancelling or refusing to renew the document, or imposing a monetary penalty. Rather, it states that the Act clearly limits the administrative enforcement actions available to the Minister to those specified therein.

The position of CALPA is also that the Minister is given clear and specific authority to suspend, cancel and to refuse to renew a licence, and in the case of designated provisions, to impose monetary penalties. Given these detailed and precise procedures, CALPA submits that it is not arguable that there exists an entirely different and parallel manner of enforcement proceeding against a document holder for an offence under the Act.

The Minister and COPA are of the view that the first question in issue is to be answered in the affirmative. The Minister states that the letter of counselling dated June 24, 1992, is “not a determination by the Minister that Dobbins is guilty of an offence under the Aeronautics Act warranting the assessment of a monetary penalty” (paragraph 30 of the memorandum of the Deputy Attorney General). Rather it merely gives Dobbins notice of allegation of a contravention pursuant to subsection 7.7(1) [as enacted by R.S.C., 1985 (1st Supp.), c. 33, s. 1] of the Act and that the Department was not going to seek a sanction for the contravention, in accordance with the exercise of the Minister’s prosecutorial discretion.

The Minister submits that a copy of this letter was placed on Dobbins’s enforcement file in accordance with the Department’s Regulatory Compliance Manual and in the interest of aviation safety. The Minister concludes that the actions in issue were taken in conformity with his supervisory jurisdiction over aeronautics and in the interest of aviation safety.

COPA focuses on the language of section 7.6 [as enacted idem] of the Act:

7.6 (1) The Governor in Council may, by regulation,

(a) designate any regulation or order made under this Part, in this section and in sections 7.7 to 8.2 referred to as a “designated provision”, as a regulation or order the contravention of which may be dealt with under and in accordance with the procedure set out in sections 7.7 to 8.2; [Emphasis added.]

COPA submits that the wording of paragraph 7.6(1)(a) of the Act gives the Minister discretion to deal with the contravention of a designated provision, in accordance with the procedure set out in sections 7.7 to 8.2 [as enacted idem] or in accordance with section 6.8 [as enacted idem].

COPA submits that the decision to proceed by way of letter of counselling was made in conformity with the option which was open to the Minister by virtue of section 7.6 and that it was within the Minister’s ambit of authority to prescribe a lesser punishment in the form of a letter of counselling.

In this regard, COPA relies on paragraph 7.6(1)(b) which provides:

7.6 (1) The Governor in Council may, by regulation,

…

(b) prescribe, in respect of a designated provision, the amount not exceeding one thousand dollars that is the maximum amount payable in respect of a contravention of that provision. [Emphasis added.]

Subsection 3(2) of the said Regulations sets out the maximum amount of penalty assessable for the contravention of each designated provision. COPA submits that section 7.6 should be interpreted in the same manner as subsection 717(2) of the Criminal Code [R.S.C., 1985, c. C-46] in that no penalty would be considered as a minimum penalty.

COPA concludes that the Minister is entitled to find a holder of a Canadian aviation document in contravention of a designated provision without suspending or cancelling the relevant aviation document or imposing a monetary penalty, but by imposing a lesser punishment in the form of a letter of counselling.

Second Question

The Tribunal argues in the alternative that if the Minister is entitled to make a finding of contravention without imposing a suspension or monetary penalty, then the right to an independent review of this finding must be found to exist.

It is the Tribunal’s position that even though the Minister may not, as a matter of policy, consider that a letter of counselling amounts to a sanction, the result, in terms of the document holder’s record, is the same as if a suspension or monetary fine has been imposed.

The Tribunal notes that, according to the Minister’s policy, a letter of counselling can be removed from an individual’s record after a period of two years, the same period as that prescribed for the removal of a notation of a suspension or cancellation. Yet, according to the Minister, a mere finding of contravention, such as is reflected in a letter of counselling cannot be challenged through an independent review.

Indeed, the Department’s policy is that a letter of counselling may be removed from an individual’s record in accordance with section 8.3 [as enacted by R.S.C., 1985 (1st Supp.), c. 33, s. 1] of the Act, which provides:

8.3 (1) Any notation of a suspension by the Minister of a Canadian aviation document under this Act or of a penalty imposed in accordance with sections 7.6 to 8.2 shall, on application by the person affected by the suspension or penalty, be removed from the record respecting that person kept by the Minister after the expiration of two years from the date the suspension expires or the penalty amount has been paid unless

(a) in the opinion of the Minister, the removal from the record would not be in the interest of aviation safety; or

(b) a suspension or penalty under this Act has been recorded by the Minister in respect of that person after that date.

(2) The Minister shall, as soon as practicable after the receipt of an application under subsection (1), by personal service or by registered mail, notify the applicant of the decision of the Minister in relation thereto.

(3) Subsections 7.1(3) to (9) and section 7.2 apply, with such modifications as the circumstances require, in respect of a decision of the Minister referred to in subsection (2) of this section.

(4) No application under subsection (1) shall be considered by the Minister within two years from the date of a previous application under that subsection in respect of the same applicant.

The Tribunal submits that while a decision pertaining to an enforcement record can be independently reviewed, the position of the Minister in this matter gives rise to a situation where an individual can be recorded as having committed an infraction without any right of review.

The Tribunal states that the Minister’s position is contradicted by its recently established policy which provides that a document holder will henceforth have the opportunity to be heard before the Tribunal whenever his enforcement record is at issue. The Tribunal submits that a Canadian aviation document holder’s “enforcement record” must, a fortiori, be at issue when he or she is alleged to have contravened a provision of the Regulations, by reason of the fact that such a record is maintained by the Minister for administration and enforcement purposes for a period of at least two years.

The Tribunal concludes that a severe injustice would befall the holders of Canadian aviation documents if their right to an independent review was to be dependent on the nature and the severity of the penalty imposed by the Minister.

CALPA submits the Act must be read as entitling the holder of a Canadian Aviation document to an independent review of a decision or determination that a contravention has taken place. CALPA relies on the protection afforded by paragraph 11(d) of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. It submits that an offence under the Act or the Regulations, however minor, falls within the criteria set out by the Supreme Court of Canada in R. v. Wigglesworth, [1987] 2 S.C.R. 541.

COPA submits that the legislative intent was to provide the holder of a Canadian document with a full opportunity consistent with procedural fairness and natural justice to present evidence before the Tribunal and to make representations in relation to any alleged contravention under the Act. It points out that sections 6.9 to 7.1 as well as 7.6 to 8.2 of the Act and 3(3) of the Regulations all provide the holder of a Canadian aviation document with an opportunity to have a decision of the Minister reviewed by the Tribunal.

It is submitted that an independent review by the Tribunal is not only triggered in the event that a Canadian aviation document has been suspended or cancelled or that a monetary fine has been imposed, but also when a simple finding of contravention has been made.

The Minister stands alone in proposing that the second question should be answered in the negative. He suggests that the second issue is better phrased in the following terms: Does the Tribunal have jurisdiction to review the determination in question?

The Minister submits that the Tribunal is a creature of statute and can only act with express authorization of the statute. The Tribunal has the authority to hold a hearing where the Minister suspends, cancels or refuses to renew a document, where the Minister assesses a penalty in respect of a designated provision, or where the Minister decides not to remove a notation of a suspension or penalty in a document holder’s enforcement record.

None of these actions were invoked by the Minister in relation to Mr. Dobbins. Alternatively, the Minister submits that the letter of counselling addressed to Mr. Dobbins does not reflect a decision of any sort and, therefore, there is no decision to review.

Finally, he also submits that paragraph 11(d) of the Charter does not apply to the case before this Court, in that Dobbins cannot be considered a person charged with an offence. In this respect, reliance is placed on the statement of Wilson J. in R. v. Wigglesworth, supra, at page 560:

Where disqualifications are imposed as part of a scheme for regulating an activity in order to protect the public, disqualification proceedings are not the sort of “offence” proceedings to which s. 11 is applicable. Proceedings of an administrative nature instituted for the protection of the public in accordance with the policy of a statute are also not the sort of “offence” proceedings to which s. 11 is applicable.

LEGISLATIVE OVERVIEW

The Tribunal was established on June 1, 1986 as a quasi-judicial tribunal, pursuant to Part IV [ss. 29-37 (as enacted by R.S.C., 1985 (1st Supp.), c. 33, s. 5)] of the Act. Its creation gave effect to one of the recommendations embodied in the Dubin report on aviation safety.[2] The relevant recommendation read as follows:

An effective enforcement process must give due regard to the rights of those against whom administrative action is taken. At present, there is no effective recourse for those against whom administrative action is taken and who desire to challenge the propriety of the sanction. It is essential, therefore, to make provision for the right of an appeal from all administrative penalties. In order to fully protect the rights of those affected by disciplinary action, the creation of a Civil Aviation Appeal Tribunal is required.

The Civil Aviation Appeal Tribunal should hear all appeals de novo, and the Tribunal should be guided by the rules of natural justice so that the rights of all parties are fully protected.

At the time when the Tribunal was created, major amendments were brought to the Act in order to clearly define the powers of enforcement conferred upon the Minister and to provide a right to an independent review with respect to administrative penalties imposed by the Minister in conjunction with alleged violations of the Act.

Part I of the Act sets out powers of enforcement which are conferred upon the Minister. It now provides for two distinct sets of administrative procedures to deal with contraventions. A third mode of dealing with offenders is provided in sections 7.3 to 7.5 [as enacted idem, s. 1] under the heading “Prohibitions, Offences and Punishments” in the form of indictment proceedings and summary conviction proceedings for a breach of provisions enacted under Part I of the Act and specified regulations or orders made thereunder.

The first set of administrative procedures is provided in sections 6.6 to 7.2 [as enacted idem] of the Act under the heading “Measures relating to Canadian Aviation Documents.” It provides the Minister with the power to suspend, cancel or refuse to renew a Canadian aviation document for medical reasons, incompetence or where such action is in the public interest (section 7.1). Section 6.9 also allows for the suspension, cancellation or refusal to renew aviation documents where a document holder has contravened any of the provisions embodied in Part I of the Act or any regulation or order made under this Part.

This procedure is initiated by the issuance of a notice of a ministerial decision advising a document holder that he or she has contravened one or more provision under Part I of the Act and that, as a result, a decision has been made to cancel or suspend as the case may be the offender’s aviation documents. The suspension or cancellation cannot take effect before thirty days have expired from the date of the issuance of the notice (subsections 6.9(1) and (2)).

The person affected by the notice may within the same thirty-day period file with the Tribunal a request for a review of the decision (subsection 6.9(3)). However, a request for a review does not operate as a stay of the suspension or cancellation of the Canadian aviation documents to which the ministerial decision relates (subsection 6.9(4)).

The Tribunal member called upon to review the ministerial decision must provide both the Minister and the document holder with a full opportunity, consistent with procedural fairness, to present evidence and make representations (subsection 6.9(7)). The Tribunal member may determine the matter by confirming the suspension or cancellation or by substituting his or her decision to that of the Minister (subsection 6.9(8)).

Where the Minister decides to suspend or cancel Canadian aviation documents on medical grounds, the Tribunal member may only confirm the suspension or refer the matter back to the Minister (subsection 7.1(8)). Subsection 7.1(7) specifically provides that in this instance, the burden of proof is on the person requesting the review.

With respect to a suspension or cancellation of Canadian aviation documents on any other ground, the Act does not specify which party bears the burden of proof during the review proceeding. In such circumstances, even though the review proceeding pertains to what is termed under the Act as a ministerial decision and that such a decision is not automatically stayed by the review process, the burden of establishing the correctness of the decision remains with the Minister.

The decision of the member of the Tribunal may be appealed to a full panel of the Tribunal by either the Minister or the document holder within ten days of its rendering (subsection 7.2(1)). Subsection 7.2(4) specifies that where such an appeal pertains to a refusal to renew a Canadian aviation document on medical grounds, “the burden of establishing that the Minister’s decision in the matter is unjustified is on the appellant.”

The Tribunal may dispose of an appeal by dismissing it or allowing it. In the latter case, the Tribunal may substitute its decision for the decision appealed against. However, on an appeal from a disqualification on medical grounds, the Tribunal may again only dismiss it, or refer it back to the Minister for reconsideration (subsection 7.2(5)).

The second set of administrative procedures is set out in sections 7.6 to 8.2 of the Act under the heading “Procedure pertaining to certain Contraventions.” It provides the Minister with a simplified mode of procedure with respect to the breach of a “designated provision.” The Federal Court of Appeal held in Canada (Attorney General) v. La Ronge Aviation Services Ltd. (1988), 93 N.R. 234, that this simplified mode of procedure is optional and does not preclude the Minister from resorting to the initial procedure pertaining to suspensions, cancellations and refusals to renew aviation documents.

A provision of the Act may be designated by regulation or an order in council. Subsection 548(2) of the Air Regulations is one such provision. A maximum fine is prescribed in respect of each such provision which now stands at $5,000 in the case of an individual and $25,000 in the case of a corporation (subsection 7.6(1) [as am. by S.C. 1992, c. 4, s. 19]). Some 94 provisions were initially designated under the Regulations. No minimum fine is prescribed for the breach of any of the designated provisions.

Subsection 7.6(2) provides that a person who contravenes a designated provision is guilty of an offence and liable to the punishment imposed in accordance with sections 7.7 to 8.2 of the Act, and that no proceedings against that person may be taken by way of summary conviction.

The “designated provision” procedure is initiated by the issuance of a notice of allegation by the Minister which must be based on a belief, on reasonable grounds, that the person in question has contravened a designated provision (subsection 7.7(1)).

The information embodied in the notice is prescribed by section 3 of the Regulations. It must specify, inter alia, the designated provision which is alleged to have been breached, the particulars of the alleged contravention, and the amount of the penalty that is sought.

Where a person served with a notice pays the specified amount, the Minister must accept the payment in full satisfaction of the amount of the penalty for the contravention and no further proceedings may be taken under Part I with respect to the contravention (subsection 7.8(1)).

Where the person fails to pay the amount within the specified time, the Minister forwards a copy of the notice to the Tribunal and the Tribunal issues a notice to appear to the alleged contravener (subsection 7.9(1)). Where the person fails to appear, the member of the Tribunal proceeds to determine the matter on the information provided by the Minister (subsection 7.9(2)).

Where the alleged offender does appear, the member of the Tribunal must provide the person and the Minister with a full opportunity to be heard and make representations, consistent with procedural fairness (subsection 7.9(4)). The alleged offender cannot be compelled to testify and the burden of establishing the commission of the alleged offence rests with the Minister (subsection 7.9(5)). The Tribunal member disposes of the matter by determining whether or not the contravention has taken place. Where the contravention is upheld, the member may vary the amount of the penalty (section 8).

A right of appeal from a decision of the member of the Tribunal to a full panel of the Tribunal is provided under subsection 8.1(1). The Tribunal may dispose of an appeal by dismissing it or allowing it, and in so doing, the Tribunal may substitute its decision for the decision appealed against (subsection 8.1(4)).

The last set of relevant procedure relates to enforcement records. Subsection 8.3(1) of the Act implicitly authorizes the Minister to maintain a record of a document holder’s prior suspension or penalty imposed pursuant to Part I of the Act. Subsection 8.3(1) allows a person who has been made the subject of a penalty or suspension to request that the notation thereof be removed from his record after the expiration of two years from the date of the suspension, or the date of the payment of the fine as the case may be.

The Minister is not bound to remove a notation from the record of a document holder where, in his opinion, the removal would not be in the interest of aviation safety or where a further suspension or penalty has been recorded by the Minister within the two years following a prior notation (paragraphs 8.3(1)(a) and (b)).

When the Minister is in receipt of a request for the removal of a prior notation, he must notify the person affected of his decision (subsection 8.3(2)).

Where his decision is negative, a right of appeal to a member of the Tribunal and to the Tribunal is provided by reference to the procedure applicable to the suspension of a Canadian aviation document as set out in subsections 7.1(3) to (9) (subsection 8.3(3)).

Subsection 8.3(4) provides that no application from the removal of a notation may be considered before two years have expired from the date of a prior application.

ANALYSIS AND DECISION

Three significant features are revealed by the statutory scheme in relation to the referred questions.

The first is that, as was recommended by the Dubin report, a sanction can only be imposed upon the commission of the underlying infraction being established in conformity with the procedure prescribed by the Act, that is after the interested party has been afforded an opportunity to present his or her case before the Tribunal.

The second is that the burden of establishing any ground of suspension or the commission of an infraction before the member of the Tribunal lies with the Minister. The only exception is a suspension based on medical grounds, in which case the document holder bears the burden of establishing before the member of the Tribunal that the ministerial decision is wrong.

The third is that the authority of the Minister to maintain an enforcement record is recognized by the statute and the recording of the commission of an infraction in an offender’s record is an adjunct to a finding made in conformity with the procedure prescribed by the Act that an infraction has been committed.

The Regulatory Compliance Manual, Fifth Edition, April 1992, issued by Transport Canada, sets out the Minister’s guidelines for ensuring compliance through administrative action. It provides as follows, at paragraph 8.7:

8.7 ADMINISTRATIVE ACTION

8.7.1    Types of Administrative Action by Regulatory Compliance Offices

There are two categories of administrative actions which may be taken by Regulatory Compliance offices when a contravention has occurred. Determination of the appropriate action depends upon policy considerations, detection source and the circumstances of each contravention.

(1)  Preventive action:

(a)  Counselling

(i)   Oral counselling is primarily used when a document holder commits a minor inadvertent violation where the imposition of a sanction is not considered appropriate. It provides the document holder with immediate counselling on the necessity for compliance. All Transport Canada Aviation Inspectors with the appropriate delegated authority can provide oral counselling. Section 8.7.3 contains the criteria used to select this type of action.

(ii)  Letters of Counselling are used for minor violations where the imposition of a sanction is not considered appropriate but the violations are of a serious enough nature to record in the document holders’ compliance file. (see section 8.7.4) [Underlining is mine.]

(iii)  Letters of Compliance outline that a minor continuing breach of the regulations has been found, and that a mandatory compliance due date has been reached between the alleged offender and Transport Canada Aviation. Should corrective action not be taken by the specified date indicated in the letter, a sanction will immediately be imposed on the alleged offender.

(b)  Training for Compliance Program (TCP)

TCP is available to eligible document holders when minor violations committed by them indicate a lack of knowledge or skill or decision making abilities which, when taken in isolation, did not amount to incompetency to exercise document privileges.

(2)  Administrative sanctions

(a)  Administrative monetary penalties

Administrative monetary penalties may be assessed where there has been a violation of a designated provision that has a significant impact on safety. The monetary penalty procedures are set out in sections 7.6 to 8.2 of the Act.

NOTE:  Prosecution by way of summary conviction is not available for contravention of a designated provision.

(b)  Suspension of Canadian aviation documents

This measure may be taken in respect of any contravention of a provision of Part I of the Aeronautics Act, the Air Regulations or the Air Navigation Orders. The authority for this action is found in section 6.9 of the Act.

The letter of counselling addressed to Mr. Dobbins was issued in conformity with paragraph (ii) above under the heading “Preventive action”. Section 8.7.4 of the Compliance Manual provides the following additional details as to the intended use of such letters:

8.7.4  Letter of Counselling

This type of counselling shall be issued at the discretion of the RDRC to remind the alleged offender that a provision of the regulations has been violated and to counsel the alleged offender to comply with the regulations in the future. While this type of counselling is not considered a “sanction”, it does form a part of the document holder’s enforcement file and will be recorded in the Enforcement Management Information System (EMIS) for management purposes. The document holder may apply to have a Letter of Counselling removed from his/her record in accordance with section 8.14.

The full text of the letter of counselling addressed to Mr. Dobbins on June 24, 1992, is as follows:

This is further to my letter of June 8, 1992, concerning an incident November 15, 1992 [sic], when a Cessna 172 registered C-GJSE deviated from the requirements of an air traffic control clearance. You have confirmed that you were pilot in command.

Your statement of June 15, 1992, has been considered in light of all available evidence and it has been determined that a violation of Air Regulations s. 548(2) took place. You based your explanation on an unsubstantiated claim of communications failure, yet by your own admission you did not inform ATC of this difficulty after regaining contact nor did you select 7600 on your transponder. The FAA report does not indicate that you mentioned a radio problem but instead specifies that you stated that you did not completely understand the clearance as issued.

Notwithstanding the hazard to safety of flight in this instance, this contravention could have resulted in a monetary penalty or a suspension of your pilot privileges. However, a lengthy period has elapsed since the event, and since you have a right to be tried within a reasonable time, no further action is contemplated by this office.[3]

In the spirit of your assurance that aviation safety is of highest concern, particularly when you teach others, I would recommend that you conduct a thorough review of IFR procedures. The flight system is conditional on all operators understanding the control instructions and following standard, established procedures.

In accordance with the intent of sec 8.3 of the Aeronautics Act you may apply to the Minister to have this enforcement action removed from your records after two years from the date of this letter.

It will be recalled that upon receipt of this letter, Mr. Dobbins sought a review of this finding before the Tribunal on the ground that there had been no contravention and that, in any event, there existed a valid defence of due diligence. The Minister objected to the conduct of the review proceedings by the Tribunal on the ground that its review jurisdiction was restricted to decisions to suspend, cancel or refuse to renew Canadian aviation documents, or to assess monetary penalties. As Mr. Dobbins was not the subject of any of these sanctions, but had only been sent a letter of counselling, there was, according to the Minister, no authority for the Tribunal to proceed with the review.

The obvious problem which arises with respect to letters of counselling, as highlighted by the one sent to Mr. Dobbins, is that they are issued on the basis that a provision of the Act or Regulations has been violated and that this asserted violation is recorded as such in the document holder’s enforcement record.

The Minister argues that a letter of counselling should be construed as nothing more than a notice of allegation that an infraction has been committed. However, this is contradicted by both the intent of the policy, which is to maintain a record of established violations, as well as by the text of the letter of counselling which was forwarded to Mr. Dobbins in this instance wherein it is unambiguously stated that “it has been determined that a violation of Air Regulations s. 548(2) took place.” In this respect, the question of importance is not so much how a letter of counselling is construed by the Minister, but how in fact such letters are used by the Minister and his officials in the context of the administration and enforcement of the Act.

The position of the Minister as to the use made of such letters was stated in a letter of representations addressed to the Tribunal by the Director, Legislation and Compliance, Transport Canada, on November 5, 1992. In it, it is stated, at page 4:

The consequence of a letter of counselling is that the document holder receives the benefit of this letter which is a counselling instead of receiving a sanction. The keeping of the record is a matter internal to the Department of Transport for administration purposes. Were the department not to keep such records, then one individual might receive a number of such letters and their lack of deterrent effect would escape the purview of the department. Hence, the keeping of the record goes to the effectiveness of the department’s compliance program.

Since the record is for the department’s administration only and since it is not considered a sanction for purposes of assessing subsequent penalties, it can have no consequence for an individual vis à vis future employment nor for future sanctions to be assessed, if any.

If the recording of a violation is of no consequence to the individual concerned, I fail to see what is meant by the assertion that in the absence of such records being kept, the “deterrent effect would escape the purview of the department,” which in turn would impede “the effectiveness of the department’s compliance program.” If there is a deterrent effect associated with the recording of such violations, it can only be because such records are used for the purpose of ensuring future compliance under the Act. The fact that letters of counselling are not looked upon as imposing a sanction per se by the Department is of little significance. What is of significance is that they are looked upon as establishing the commission of the infractions which they assert, and that they are used as such by the Minister and his officials in the administration and enforcement of the Act.

That a letter of counselling is used by the Minister as a document establishing that an infraction has been committed under the Act is made obvious by the fact that it is recorded in the document holder’s enforcement record. The significance of this record insertion from the perspective of the Minister is apparent from the fact that its removal is, according to the policy, to be governed by section 8.3 of the Act. This provision allows a person to apply for the removal of a previously recorded suspension or penalty from his or her enforcement record two years after the event, under certain terms and conditions. The end result is that a person who has been made the subject of a letter of counselling is recorded as having breached the Act without the commission of the underlying violation being established in conformity with the Act.

The recording of a violation of a regulation or an order in a document holder’s record has a significant impact on the rights and privileges of the person affected.[4] This is recognized by the fact that a notation may not be removed from the enforcement record before the expiration of two years, or thereafter, if the document holder has, in the interim, committed a further breach, or if the Minister is of the opinion that the removal is not in the interest of aviation safety. The right of appeal from a ministerial decision relating to record notations under section 8.3 is a legislative recognition of the fact that substantive rights are affected by a ministerial decision to maintain a record of a suspension or penalty beyond the two-year statutory period.

If that be so in the context of suspensions or penalties established in accordance with the due process of law, what can one make of a procedure whereby, from the onset, a document holder is recorded as having committed a breach of a regulation or order without being afforded any opportunity to challenge the finding which forms the basis of his or her enforcement record? Therein lies the real issue underlying the first question referred to the Court.

The Act contemplates that a document holder who has been found to have violated the Act, either by admitting to it or by contesting it unsuccessfully before the Tribunal, will be recorded as having breached the Act and as having been made the subject of a suspension or penalty. When the matter is contested, the statutory scheme is such that notations can only be made upon the commission of the violation being established in conformity with the Act, that is after an independent review in which the person concerned is given a full opportunity, consistent with procedural fairness and natural justice, to present evidence and make representations in relation thereto. Section 8.3 refers to suspensions or penalties, and the commission of an infraction underlying these sanctions can only be established under the Act after the interested party has been afforded a right to be heard.

The maintenance of an offender’s record is fundamental to the administration and enforcement of the Act. An offender’s record is kept by the Minister under the authority of the statute. It acts as a strong deterrent against any future breach of the Act vis-à-vis the guilty party and allows the Minister to monitor the evolution of a document holder’s flight behaviour against the background of the recorded violation. It can also justify the imposition of more drastic sanctions in the event that the document holder’s record should again be put into issue by the commission of a further breach, or by the Minister’s decision to challenge the competence of the document holder. The fact that the Act only contemplates the notation of an enforcement record with respect to violations which are established in conformity with the Act and that a decision by the Minister to maintain a record beyond a two-year period is subject to appeal, further emphasizes the importance of the interests at stake in both the creation of an offender’s record and its maintenance beyond the two-year period.

Against this background, I believe that it is fairly obvious that the Minister is not empowered by the Act to register an infraction as having been committed on a document holder’s record in the absence of the commission of the infraction being established in conformity with the Act. The Act contemplates that the commission of an infraction may be established at the instigation of the Minister either by reference to the procedure set forth in sections 6.6 to 7.2 of the Act pertaining to suspensions, and 7.6 to 8.2 of the Act pertaining to monetary penalties. I do not believe that the Minister can assert the commission of an infraction as having been established under the Act otherwise than by proceeding within the authority so conferred. The constitution of an offender’s record is an adjunct to the determination under the Act that an infraction has been committed and this determination can only be made within the confines of the procedure prescribed by the Act.

Indeed, I believe that this was recognized by the revised Transport Canada Regulatory Compliance policy letter dated June 25, 1993, wherein it is stated:

The purpose of this policy letter is to ensure that all Regulatory Compliance personnel understand the policy respecting the issuing of a Letter of Counselling to a Canadian Aviation Document holder.

A Letter of Counselling is used for a minor violation of the regulations that is serious enough to record on a document holder’s compliance file but is not considered serious enough to impose a monetary penalty or a suspension. In no circumstances, however, shall a Letter of Counselling be issued where the document holder disputes the facts alleged or that he/she has committed a regulatory violation. In such cases, the file must be closed either with no further action, an oral counselling, or if appropriate based on the document holder’s attitude towards compliance, by the imposition of a monetary penalty or suspension. This will ensure that the document holder will have the opportunity for a hearing before the Civil Aviation Tribunal in all cases where his/her enforcement “record” is at issue. Furthermore, when Letters of Counselling are issued, they must refer to the fact that there is agreement that a violation has taken place.

I trust this directive clarifies any misconceptions regarding this policy. The above text will be incorporated in the next amendment of the Compliance Manual.

In addition, I must say that I have some difficulty in understanding the policy justification advanced by the Minister in support of the original policy. I accept that the maintenance of enforcement records in which are recorded prior violations is essential to the aviation safety. In many cases, it can have a stronger deterrent effect than the imposition of monetary penalties. Furthermore, I can understand that the Minister could be open to serious criticism if his officials, after noting in writing the commission of infractions by document holders, failed to keep a record of their occurrence for future compliance purposes.[5]

However, where an infraction is significant enough to warrant its recording but not serious enough in the eyes of the Minister to warrant a monetary penalty as stated in the policy document, it remains open to the Minister to assess a purely symbolic monetary penalty as no minimum is prescribed under the Act. This, it seems, provides the Minister with the flexibility required to meet his policy concerns without purporting to take away a document holder’s right to an independent review when confronted with an infraction under the Act. If, on the other hand, the position of the Minister for not choosing this route is that, in such instances, the nature of the infraction does not warrant providing the person concerned with a right to an independent review, then he is clearly acting outside the ambit of the statute.

In my view, therefore, the Minister is not empowered to decide that a violation has taken place and to register this violation as having been committed in a document holder’s enforcement record without resorting to the prescribed procedure set forth in the Act. The scheme of the Act is such that the commission of an infraction can only be considered to have been established for purposes of the Act after the interested party has been afforded a right to an independent review.

For these reasons, I would answer the first question in the negative. Having so decided, I need not deal with the second question.

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