T-2590-91
Attorney General of Canada and The Minister of
Transport of Canada (Applicants)
v.
Peter Gill and The Civil Aviation Tribunal
(Respondents)
and
Drs. C. Hale, T. M. Boylan, R. P. Knipping, J. W.
Moore and F. W. (a.k.a. R. A.) Evans, and
Canadian Air Line Pilots Association (Intervenors)
INDEXED AS. CANADA (A TTORNEY GENERAL) V. GILL (T.D.)
Trial Division, Strayer J.—Ottawa, January 29 and
February 13, 1992.
Air law — Aeronautics Act, s. 6.5(1) requiring doctors to
report pilots' medical conditions constituting hazard to avia
tion safety — S. 6.5(5) providing information so provided privi
leged and no person required to disclose it "in any legal, disci
plinary or other proceedings" — Minister notifying pilot of
suspension of Licence Validation Certificate for failure to pro
vide requested medical information — At review hearing Civil
Aviation Tribunal member ordering Department to produce all
medical reports in its possession — Erred in holding privilege
under s. 6.5(5) applies only to proceedings instituted against
physician under s. 6.5(4) — S. 6.5(5) precluding order of dis
closure of s. 6.5(1) reports — Tribunal member having implied
jurisdiction to make preliminary decision on Charter issue, but
should decline to decide Charter issues where unnecessary on
facts to do so — Tribunals should act consistently with law and
form some view of what law is, including meaning of Charter.
Constitutional law — Charter of Rights — Life, liberty and
security — On review of Minister of Transport's decision to
suspend pilot's licence for refusing to provide medical infor
mation, Civil Aviation Tribunal member ordering production of
all medical reports on pilot in Department's possession pursu
ant to Charter, s. 7 guarantee of right not to be deprived of
life, liberty and security of person except in accordance with
principles of • fundamental justice — Only issue whether pilot
obliged to provide medical information — Not relating to
rights protected by s. 7 — Liberty and security of person gen
erally those affected by judicial system — As refusal to disclose
medical information not denial of natural justice, no denial of
fundamental justice — Tribunal member authorized to review
Minister's decision to suspend licence, not reasonableness of
decision to request further information — Alternatively, rea
sonable grounds for demand for information.
This was an application for prohibition and certiorari to
quash an order of a member of the Civil Aviation Tribunal
compelling the Minister of Transport to produce any medical
reports made in respect of Peter Gill under Aeronautics Act,
subsection 6.5(1). Subsection 6.5(1) requires physicians to
report any medical or optometric condition of a pilot likely to
constitute a hazard to aviation safety. Subsection 6.5(5) pro
vides that information so provided is privileged and no person
shall be required to disclose it or give evidence relating to it
"in any legal, disciplinary or other proceedings". Subsection
7.1(3) provides for review of the Minister's decision to sus
pend or cancel a Canadian aviation document.
Gill held a pilot's private licence. In order to obtain a
renewal of his Licence Validation Certificate (LVC), he under
went a medical examination. The examining doctor reported
that Gill might have psychiatric problems. The Department of
Transport requested from Gill a complete psychiatric history
and assessment of his present psychological state, which he
refused to provide. The Minister notified Gill that his LVC was
suspended for failure to provide the information. Prior to the
review of this decision, the Civil Aviation Tribunal member
ordered disclosure of all medical reports in the Department's
possession. At the hearing he held that the privilege afforded
by subsection 6.5(5) applies only to proceedings which might
be instituted against a physician under subsection 6.5(4). Alter
natively, he held that Charter, section 7 provided a general
constitutional right to full and complete disclosure.
The issues were: (1) whether subsection 6.5(5) prevented the
Civil Aviation Tribunal from requiring the production of
reports made pursuant to subsection 6.5(1); (2) whether the
Tribunal had jurisdiction to determine that subsection 6.5 was
contrary to the Charter; and (3) whether the Tribunal member
correctly decided that subsection 6.5(5) was contrary to Char
ter, section 7.
Held, the application should be allowed.
(I) Subsection 6.5(5) precludes an order for the disclosure
of subsection 6.5(1) reports. Subsection 6.5(4) deals with the
liability of a physician arising out of a report and precludes any
liability. Subsection 6.5(5) deals with the compellability and
use of evidence and not with liability. It is not confined to
"legal, disciplinary or other proceedings ... against a physi-
cian or optometrist" but applies to "any legal, disciplinary or
other proceedings". Had Parliament intended to confine the
application of subsection 6.5(5) to the proceedings in subsec
tion 6.5(4), it could have done so. Instead, reference to "any
legal, disciplinary or other proceedings" in subsection 6.5(5)
indicates that a subsection 6.5(1) report cannot be "used" in
any such proceeding nor can its disclosure be compelled.
(2) It was within the Tribunal member's jurisdiction to make
an initial decision as to any Charter issue properly before him.
Recent Supreme Court of Canada decisions have confirmed
that where an administrative tribunal has an express authority
to interpret and apply statutes, or where it has been expressly
authorized to determine questions of law, it may apply the
Charter to determine the validity of laws it is applying. It has
also been held that such power may be implied. The Aeronau
tics Act is silent as to whether tribunal members or the Civil
Aviation Tribunal itself can determine questions of law, but it
does give important functions to the Tribunal, and requires it
and its members to provide to the Minister and the holder of a
licence a full opportunity, consistent with procedural fairness
and natural justice, to present evidence and make representa
tions in relation to the suspension, cancellation or refusal to
renew under review. It should not be lightly concluded that a
tribunal has no authority to decide questions of law and consti
tutionality: generally speaking, tribunals should endeavour to
act consistently with the law and must form some view as to
what the law is, including the meaning of the Charter which is,
as part of the Constitution, "the supreme law of Canada".
Tribunals should exercise restraint in dealing with Charter
issues. Here, there was no counsel on one side and counsel for
the Minister and the intervenor doctors had not been warned
that the Charter issue was to be addressed. As no party had
raised the section 7 issue and it did not constitute a fundamen
tal jurisdictional issue which had to be decided , before the Tri
bunal could proceed, the Tribunal should not have addressed it,
or should have at least notified the parties and allowed time for
preparation of argument.
(3) Charter, section 7 did not apply. Section 7 protects "life,
liberty and security of the person", none of which were at
stake. The only issue was whether Gill was obliged to provide
a further psychiatric assessment, which does not affect "life".
In general, the kinds of "liberty and security of the person"
protected by section 7 are those affected by the judicial system.
Even if the interest at stake were the loss of licence, thereby
depriving Gill of the ability to work, this would be an eco
nomic loss which is not normally protected by the Charter. Nor
was there a denial of "fundamental justice". Applying the
highest common law requirement, that of natural justice, the
Minister's refusal to disclose any other subsection 6.5(1)
reports did not amount to a denial of natural justice. The Tribu
nal member saw this matter as a prosecution, based on the
assumption that the issue in the review was whether the
Department had reasonable grounds to request the information
from Gill in the first place. He misunderstood the review pro
cess authorized by subsection 7.1(3). That subsection only
authorized him to review the Minister's decision to suspend
the LVC for failure to provide medical reports. The only mat
ters pertinent to such a review were: was a demand sent by the
proper person to Gill; did Gill fail to provide the further infor
mation requested; and if so, was a decision taken by the proper
person to suspend his LVC? The Tribunal member was not
entitled to assess the reasonableness of the decision to request
further information, bearing in mind also that there is a further
right of appeal if the pilot provides the information and his
licence is suspended on medical grounds under paragraph
7.1(1)(a). Alternatively, it was not necessary in the interests of
fundamental justice that all subsection 6.5(1) reports be pro
duced. There were reasonable grounds for the demand being
made for more information. The Tribunal member should only
have inquired whether the request was made in good faith.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1.
Aeronautics Act, R.S.C., 1985, c. A-2, s. 6.5 (as enacted
by R.S.C., 1985 (1st Supp.), c. 33, s. 1), 7.1 (as enacted
idem), 37(4) (as enacted idem, s. 5).
Air Regulations, C.R.C., c. 2, s. 406.
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. 7.
Civil Aviation Tribunal Rules, SOR/86-594, s. 12.
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44],
s. 52.
Federal Court Act, R.S.C., 1985, c. F-7, s. 57 (as am. by
S.C. 1990, c. 8, s. 19).
Privacy Act, R.S.C., 1985, c. P-21, s. 22(1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Tétreault-Gadoury v. Canada (Employment and Immigra
tion Commission), [1991] 2 S.C.R. 22; (1991), 91 CLLC
14,023; Reference Re ss. 193 and 195.1(1)(c) of the Crim
inal Code (Man.), [1990] 1 S.C.R. 1123.
CONSIDERED:
R. v. Schmiemann (1991), 83 Alta. L.R. (2d) 282 (Prov.
Ct.).
REFERRED TO:
R. v. Bourget (1987), 41 D.L.R. (4th) 756; 54 Sask. R.
178; 35 C.C.C. (3d) 371; 56 C.R. (3d) 97; 29 C.R.R. 25;
46 M.V.R. 246 (C.A.); R. v. Bahinipaty (1987), 56 Sask.
R. 7 (C.A.); Douglas/Kwantlen Faculty Assn. v. Douglas
College, [1990] 3 S.C.R. 570; (1990), 77 D.L.R. (4th) 94;
[1991] 1 W.W.R. 643; 52 B.C.L.R. (2d) 68; 91 CLLC
17,002; Cuddy Chicks Ltd. v. Ontario (Labour Relations
Board), [1991] 2 S.C.R. 5; (1991), 81 D.L.R. (4th) 121;
91 CLLC 14,024; 122 N.R. 361; [1991] OLRB Rep. 790;
Armadale Communications Ltd. v. Adjudicator (Immigra-
tion Act), [1991] 3 F.C. 242; (1991), 83 D.L.R. (4th) 440;
14 Imm. L.R. (2d) 13; 127 N.R. 342 (C.A.); Weyer v.
Canada (1988), 83 N.R. 272 (F.C.A.); Re Bassett and
Government of Canada et al. (1987), 35 D.L.R. (4th) 537;
53 Sask. R. 81 (C.A.).
APPLICATION to quash an order of a member of
the Civil Aviation Tribunal compelling the Minister
of Transport to produce any medical reports made in
respect of Peter Gill under Aeronautics Act, subsec
tion 6.5(1). Application allowed.
COUNSEL:
Dogan D. Akman and Sanderson Graham for
applicants.
Michael G. Weissenborn for respondent Peter
Gill.
James H. Smellie for respondent Civil Aviation
Tribunal.
William G. Scott for intervenors Dr. C. Hale, Dr.
T. M. Boylan, Dr. R. P. Knipping, Dr. J. W.
Moore and Dr. F. W. (a.k.a. R. A.) Evans.
Lila Stermer for intervenor Canadian Air Line
Pilots Association.
SOLICITORS:
Deputy Attorney General of Canada for appli
cants.
Michael G. Weissenborn, Etobicoke, Ontario for
respondent Peter Gill.
Osier Hoskin & Harcourt, Ottawa, for respon
dent Civil Aviation Tribunal.
McCarthy Tetrault, Toronto, for intervenors Dr.
C. Hale, Dr. T. M. Boylan, Dr. R. P. Knipping,
Dr. J. W. Moore and Dr. F. W. (a.k.a. R. A.)
Evans.
Gravenor Keenan, Montréal, for intervenor
Canadian Air Line Pilots Association.
The following are the reasons for order rendered in
English by
STRAYER J.:
Relief Requested
The applicants seek orders of prohibition and certi-
orari to quash and preclude the enforcement of an
order made by a member of the respondent Civil Avi
ation Tribunal (hereinafter referred to as the "Tribu-
nal Member") on September 11, 1991 compelling the
Minister of Transport to produce and disclose to the
respondent Gill any medical reports made in respect
of Gill under subsection 6.5(1) of the Aeronautics
Act) The grounds essentially are that the Tribunal
member acted in excess of his jurisdiction, misinter
preted the law, based his decision in part on unneces
sary considerations, and denied the applicants natural
justice by failing to give notice of his intention to
consider a constitutional issue, namely the possible
application of section 7 of the 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]] to the
case before him.
Regulatory Framework
To understand the facts it is necessary to consider
some salient legislation and delegated legislation.
Among the Air Regulations [C.R.C., c. 2] adopted
under the Aeronautics Act is the following:
406. A licence or permit issued or an endorsement thereon
entered under this Part or a document validating any such
licence or permit may contain such conditions as the Minister
prescribes, and the conditions may be amended at any time by
the Minister.
R.S.C., 1985, c. A-2 (as enacted by R.S.C., 1985 (1st
Supp.), c. 33, s. 1).
It is not in dispute that among the conditions attached
to pilots' licences, as prescribed by the Minister, are
the following provisions in the Personnel Licensing
Handbook: 2
1.8.2 The Regional Medical Officer, or Chief, Clinical Assess
ment, may request that an applicant provide any addi
tional medical information or reports in order to estab
lish the applicant's medical fitness.
1.8.3 Provision of additional medical evidence when requested
is a condition subject to which the medical validation is
issued. Failure to comply with the request in 1.8.2 by the
date specified shall be grounds for suspension of the
Licence Validation Certificate. [Emphasis added.]
Section 6.5 of the Aeronautics Act provides as fol
lows:
6.5 (1) Where a physician or an optometrist believes on rea
sonable grounds that a patient is a flight crew member, an air
traffic controller or other holder of a Canadian aviation docu
ment that imposes standards of medical or optometric fitness,
the physician or optometrist shall, if in his opinion the patient
has a medical or optometric condition that is likely to consti
tute a hazard to aviation safety, inform a medical adviser des
ignated by the Minister forthwith of that opinion and the rea
sons therefor.
(2) The holder of a Canadian aviation document that
imposes standards of medical or optometric fitness shall, prior
to any medical or optometric examination of his person by a
physician or optometrist, advise the physician or optometrist
that he is the holder of such a document.
(3) The Minister may make such use of any information
provided pursuant to subsection (I) as the Minister considers
necessary in the interests of aviation safety.
(4) No legal, disciplinary or other proceedings lie against a
physician or optometrist for anything done by him in good
faith in compliance with this section.
(5) Notwithstanding subsection (3), information provided
pursuant to subsection (I) is privileged and no person shall be
required to disclose it or give evidence relating to it in any
legal, disciplinary or other proceedings and the information so
provided shall not be used in any such proceedings.
(6) The holder of a Canadian aviation document that
imposes standards of medical or optometric fitness shall be
deemed, for the purposes of this section, to have consented to
the giving of information to a medical adviser designated by
the Minister under subsection (I) in the circumstances referred
to in that subsection.
As will be seen, section 6.5 makes provision for
mandatory reporting by doctors and optometrists, to
the medical advisers of the Minister of Transport, of
any medical or optometric condition detected in a
2 2nd ed., April, 1990, vol. 3.
patient who is, inter alia, the holder of a pilot's
licence, where such condition is likely to constitute a
hazard to aviation safety. The remainder of the sec
tion deals with the use which may be made of that
information. The undisputed evidence before the Tri
bunal was that this section is not applied in respect of
medical information provided to the Department of
Transport by a doctor designated as a civil aviation
medical examiner, following the medical examina
tion of a pilot where such examination is required
under the Aeronautics Act to enable the pilot to
obtain or maintain a Licence Validation Certificate
("LVC") which he must have to keep his pilot's
licence in force. This interpretation as applied by the
Department of Transport appears to be fully consis
tent with the Act and the Regulations. The evidence
before the Tribunal also indicated that reports made
under section 6.5 are not kept in the pilot's file but
are kept in a separate and secure area and are not
used directly in making a medical assessment of a
pilot in any determination as to the suspension or
refusal of an LVC.
Section 7.1 [as enacted idem] provides procedures
for the Minister of Transport to suspend or cancel,
inter alia, an LVC and for the review of such deci
sions by the Tribunal. It provides in part as follows:
7.1 (1) Where the Minister decides
(b) to suspend or cancel a Canadian aviation document on
the grounds that ... the holder ... ceases ... to meet or
comply with the conditions subject to which the document
was issued,
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 his latest known
address notify the holder, owner or operator of his decision.
(2) A notice under subsection (I) 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,
(a) indicate, as the case requires,
(ii) ... the conditions subject to which the document was
issued that the Minister believes are no longer being met
or complied with; and
(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.
(3) Where the holder of a Canadian aviation document or the
owner or operator of any aircraft, airport or other facility in
respect of which a Canadian aviation document is issued who
is affected by a decision of the Minister referred to in subsec
tion (1) wishes to have the decision reviewed, he shall, on or
before the date that is thirty days after the notice is served on
or sent to him under that subsection or within such further time
as the Tribunal, on application by the holder, owner or opera
tor, may allow, in writing file with the Tribunal at the address
set out in the notice a request for a review of the decision.
(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.
(8) On a review under this section of a decision of the Min
ister to suspend, cancel or refuse to renew a Canadian aviation
document, the member of the Tribunal conducting the review
may determine the matter by confirming the suspension, can
cellation or refusal to renew or by referring the matter back to
the Minister for reconsideration.
Facts
While the decision of the Tribunal member in
question here was made on September 11, 1991 it is
necessary to look briefly at a series of events begin
ning in early 1990.
At that time the respondent Gill was the holder of a
pilot's private licence. His LVC was to expire on
about March 18, 1990 and in order to obtain a
renewal he underwent a medical examination by Dr.
J. W. Moore of Mississauga, an authorized Civil Avi
ation Medical Examiner. Dr. Moore signed a medical
examination report which had the effect of extending
Mr. Gill's LVC for a further 180 days, but on June 5,
1990 he wrote a letter to Dr. F. W. Evans, Aviation
Medical Officer for the Ontario region of the federal
Department of Health and Welfare which provides
medical evaluation services to the Department of
Transport. In that letter he discussed his examination
of Mr. Gill on March 12, 1990 and, giving reasons,
expressed his concern that Mr. Gill might have psy
chiatric problems. He also mentioned that Mr. Gill
had told him that he had undergone psychiatric
assessment in the past. Dr. Moore reported that he
had referred Mr. Gill to a psychiatrist, Dr. T. M. Boy-
lan, who had seen him on April 30 and who had
reported back to Dr. Moore. (While Dr. Moore appar
ently did not provide Mr. Gill with a copy of this let
ter at the time, it is clear that Mr. Gill had a copy of it
by the time of a hearing of the Tribunal on February
13, 1991. A further copy was provided to Mr. Gill
prior to the hearing in question in these proceedings,
held September 11, 1991.) On August 21, 1990 Dr.
Evans wrote to Mr. Gill saying that:
We understand that you have had some past emotional
problems requiring psychiatric assessment. We also understand
that you were recently seen by Dr. T.M. Boylan and we request
that you have Dr. Boylan submit to us a complete history con
cerning your previous problems and present psychological
state.
It appears that this letter was received by Mr. Gill
because he does not dispute that on August 24, 1990
he discussed the subject of that letter with Dr. Evans
by telephone. Dr. Evans that day sent to him a letter
referring to that telephone conversation. In it he con
firmed that the Department needed the report from
Dr. Boylan and would like to have information from
the psychiatrist whom Gill had seen some years
before. That letter also indicates that Mr. Gill had so
far refused to provide such information.
In the meantime on April 30, 1990 Dr. Boylan, the
psychiatrist, had seen Mr. Gill and had written a letter
to the referring doctor, Dr. J. W. Moore, reporting
that "the general tenor of his thought content was
paranoid". (It is not clear when or how this letter
reached either the Department or Mr. Gill, but it was
produced by Mr. Gill as an exhibit during the Tribu
nal hearing of February 13, 1991 and the Department
produced it to Mr. Gill prior to the hearing in ques
tion here of September 11, 1991.)
After the communications between Dr. Evans and
Mr. Gill in August, 1990, several efforts were made
by the Department of Transport to obtain from Mr.
Gill further medical information concerning past psy
chiatric assessments. A notice was finally delivered
to him successfully in November, 1990 requiring the
production of the requested information by Decem-
ber 28, 1990. As the information was not provided, a
notice was sent to Gill on January 24, 1991 advising
him that, pursuant to paragraph 1.8.3 of the Person
nel Licensing Handbook, as he had failed to provide
the information requested he was in breach of a con
dition upon which medical validation is issued and
his LVC was therefore suspended, apparently pursu
ant to paragraph 7.1(1)(b) of the Aeronautics Act,
supra. Gill thereupon requested a review of that deci
sion pursuant to subsection 7.1(3) and such a review
took place before a Tribunal member. After a hearing
held on February 13, 1991 the Tribunal member in
effect set aside the suspension by referring the matter
back to the Minister for reconsideration pursuant to
subsection 7.1(8). The reason given for this was that
the notice sent from the Department of Health and
Welfare requiring further medical information was
not sent by the right official. The effect of referring
the matter back to the Minister was that the suspen
sion terminated and Gill was given a temporary LVC
due to expire on April 1, 1991.
Because of the impending expiration of his tempo
rary LVC, Gill visited two aviation medical examin
ers: Dr. C. Hale on March 18, 1991, and Dr. R. P.
Knipping on March 19, 1991. Dr. Hale recommended
that his renewal be deferred. Dr. Hale's medical
examination report was accompanied by a letter dis
cussing Mr. Gill's conduct in reaction to Dr. Hale's
refusal to recommend renewal. Dr. Knipping who
saw him on March 19 recommended a renewal. Both
reports as filed indicate that in response to the ques
tion on the form as to whether Gill had "psychia-
tric/neurological problems" he had responded "No".
Subsequently, after Gill's LVC had expired, he saw a
Dr. Jovey on April 18, 1991 who recommended that
his LVC be renewed. On May 27, 1991 Dr. J. M.
Wallace, Acting Regional Aviation Medical Officer
for Civil Aviation Medicine, Ontario Region, wrote
to Gill referring to Dr. Jovey's report and stating that:
Before your assessment can be completed, we will require the
report of a full psychiatric assessment.
He went on to say that no LVC would he reissued
unless such information was provided by June 30,
1991. According to his evidence at the later hearing
on September 11, 1991, Dr. Wallace came to this
conclusion after a review of Gill's entire medical file
at the Civil Aviation Medical Division. On cross-
examination he affirmed that the only information he
had was contained in the files to which Gill has had
access, 3 which would include the medical reports I
referred to above. As Gill did not provide the infor
mation as requested by Dr. Wallace, a notice was sent
to him on July 10, 1991 by Richard Schobesberger,
Acting Regional Director, Aviation Licensing, Onta-
rio Region, for the Minister of Transport. This notice
advised Mr. Gill that pursuant to paragraph 1.8.3 of
the Personnel Licensing Handbook, and paragraph
7.1(1)(b) of the Aeronautics Act, his LVC was being
suspended effective July 10, 1991 due to his failure to
provide the requested medical information.
Gill then requested a review of this decision pursu
ant to subsection 7.1(3) of the Aeronautics Act. The
Tribunal member assigned to this review held a hear
ing by conference call on August 1, 1991 to deal with
an application by Gill for an order directing disclo
sure of information by the Department prior to the
review hearing. The Tribunal member ordered the
Department of Transport to provide the applicant
with the following material at least fourteen clear
days before the date of the hearing:
1. The name and address of all witnesses to be called at the
Reviewing Hearing including persons who will be called as
"expert".
2. A summary of the evidence to be given by each witness in
sufficient detail that the Applicant has the opportunity to pre
pare a complete and full defence.
3. Copies of all Medical reports in the possession of Transport
or their medical advisors.
3 Applicants' record, at pp. 243-244.
He based this order on section 12 of the Tribunal
Rules [Civil Aviation Tribunal Rules, SOR/86-594]
and the following statement:
In any event Section 7 of the Charter gives the Tribunal
broad power to promote the administration of Justice by order
ing disclosure and discovery of materials and objects.
He went on to cite two 1987 decisions of the Sas-
katchewan Court of Appeal, both involving prosecu
tions for offences . 4 Pursuant to this order the Depart
ment of Transport produced the names and addresses
of five potential witnesses, three of whom it intended
to call and two of whom it might call. An outline was
given of the evidence all five would provide. Among
the medical reports provided were the reports of Drs.
Boylan, Moore, Hale, Knipping and Jovey all
referred to above. (The three witnesses whom the
Department said it would call were in fact called as
witnesses at the hearing on September 11, namely
Drs. Wallace and Haskell and Mr. Schobesberger.)
During the hearing on September 11 Mr. Gill
insisted that all reports provided to the Department
under subsection 6.5(1) should have been disclosed
by the Department pursuant to the Tribunal member's
order of August 1 to provide "copies of all medical
reports in the possession of Transport". It is not at all
clear from reviewing the evidence that there were in
fact any such reports which were not produced. Cer
tainly Dr. Wallace made it clear that his decision to
demand a "full psychiatric assessment" as set out in
his letter of May 27, 1991 to Gill was made purely on
the basis of the material made available to Gill. Nev
ertheless the Minister's representative took the posi
tion that the Department could not be obliged to dis
close any reports provided under subsection 6.5(1)
and the issue was joined in relation to that position.
Gill insisted he should have such reports and the Tri
bunal member agreed. In his subsequent written rea
sons he stated the following:
4 R. v. Bourget (1987), 41 D.L.R. (4th) 756 (Sask. C.A.); R.
v. Bahinipaty (1987), 56 Sask. R. 7 (C.A.).
As a result of the evidence it was apparent that the Applicant
had not been provided with medical information given to
Transport under the provisions of Section 6.5 of the Aeronau
tics Act.
The question is whether the privilege afforded under section
6.5(5) is all encompassing, or whether it is restricted to legal,
disciplinary or other proceedings taken against a physician or
optometrist as a result of disclosing information relating to a
pilot If section 6.5 of the Aeronautics Act had not been passed,
a physician or optometrist could be summonsed in a civil or
criminal proceeding and the information would not be subject
to privilege under common law.
Section 6.5 makes it mandatory for a physician or surgeon or
optometrist to disclose information to Transport which they
would not otherwise have to disclose except under subpoena. I
conclude, therefore, that the privilege afforded by section
6.5(5) applies only to those proceedings which might be insti
tuted against a physician or optometrist concerned under sec
tion 6.5(4) and that the privilege is restrictive rather than all
encompassing.
If I am wrong in this respect, I am of the view that section 7 of
the Charter provides a general constitutional right to full and
complete disclosure, unless there exists a cogent reason for not
doing so and that Transport must make available to document
holders medical information provided to them under section
6.5 of the Aeronautics Act.
I am of the view that for a document holder to be afforded his
right to procedural fairness and natural justice openness and
disclosure rather than suppression must be the rule.
At the request of the Minister's representative he
adjourned the hearing on September 11 to allow the
Minister to seek a review of his decision with respect
to the need to disclose all reports made under subsec
tion 6.5(1). The Attorney General and the Minister of
Transport seek that review in the present proceed
ings.
Issues
The essential issues are:
(1) Does subsection 6.5(5) of the Aeronautics Act
prevent, or purport to prevent, the respondent Civil
Aviation Tribunal from requiring the production of
reports made pursuant to subsection 6.5(1)?
(2) If so, does the Tribunal, or a member thereof,
have the jurisdiction to determine that subsection
6.5(5) is contrary to the Charter?
(3) If so, did the Tribunal member correctly decide
that subsection 6.5(5) would be contrary to section 7
of the Canadian Charter of Rights and Freedoms if it
were given such an effect?
Conclusions
At the outset I should observe that the learned Tri
bunal member did not have the benefit, which I have
had, of being able to peruse the entire transcript of
the evidence heard by him and of considering exten
sive argument by counsel including a plethora of
jurisprudence. In fact Gill was not represented by
counsel in the hearing on September 11 and the Tri
bunal member was no doubt properly concerned that
any legal issue which might be raised in Gill's favour
should be considered. The legal issues are also novel
in respect to section 6.5 and the powers of the Tribu
nal, the relevant statutory provisions having come
into force only in 1985. For this reason I will deal
with the issues at some length.
Meaning of Section 6.5
I am satisfied that subsection 6.5(5) precludes the
Civil Aviation Tribunal from ordering the disclosure
of reports made under 6.5(1). Subsections (1) and (2)
of that section require, inter alia, a pilot to advise his
doctor that he has a licence and that doctor to report
to a designated medical advisor any medical or opto-
metric condition of the pilot that he thinks is likely to
constitute a hazard to aviation safety. These subsec
tions impose respectively, on the pilot and on the
doctor, obligations which they would not otherwise
have, to provide information. Subsection (3) allows
the Minister to make use of such information pro
vided by a doctor but it must be such use as he "con-
siders necessary in the interests of aviation safety".
This means that the Minister has the right to use the
information and can provide it to various people,
including the pilot himself, if he considers it neces
sary in the interest of aviation safety. The reporting
doctor can also provide a copy to his patient if he
chooses to do so. Nothing in section 6.5 precludes
that. Subsection (4) in my view deals with the ques
tion of liability of a physician or optometrist arising
out of making such a report, and precludes any such
liability. This means that even if the making of the
report or its contents were otherwise proved by a
patient-pilot, no tribunal could entertain a complaint
against the doctor or optometrist. Subsection (5), on
the other hand, deals with the compellability and use
of evidence and does not deal with liability. It is
clearly not confined to "legal, disciplinary or other
proceedings ... against a physician or optometrist"
hut applies to "any legal, disciplinary or other pro
ceedings". With respect, in my view the Tribunal
member erred in equating subsections (4) and (5)
where he said, supra, that
the privilege afforded by section 6.5(5) applies only to those
proceedings which might be instituted against a physician or
optometrist concerned under section 6.5(4) ....
I am unable to appreciate how he reached that con
clusion. It is perhaps arguable that, since the protec
tion from liability granted by subsection 6.5(4) is
confined to situations where a physician or optome
trist has made a report "in good faith", were it not for
subsection 6.5(5) that report might be compellable as
evidence or otherwise used in a suit against the doc
tor for having made a report in bad faith. However if
Parliament had meant to confine the application of
subsection 6.5(5) to the proceedings referred to in
subsection 6.5(4) this could easily have been done.
Instead Parliament employed the words "in any legal,
disciplinary or other proceedings". 5 The Tribunal
proceeding in question here can be seen as a
"legal ... or other proceeding" and subsection 6.5(5)
is clear that a subsection 6.5(1) report cannot be
"used" in any such proceeding nor can its disclosure
be compelled.
Having come to these conclusions, it is not neces
sary for me to try to define more precisely the "privi-
lege" which subsection 6.5(5) attaches to such
reports, or to identify the persons entitled to enjoy or
waive that privilege. It was also argued in support of
5 Thus s. 6.5(5) has been held to preclude compulsion or use
of a doctor's evidence of a s. 6.5(1) report in the prosecution of
a pilot under the Air Regulations: R. v. Schmiemann (1991), 83
Alta. L.R. (2d) 282 (Prov. Ct.).
the position taken by the applicants that, quite apart
from the privilege provided in subsection 6.5(5), the
information provided by the physician to the Depart
ment of Transport in confidence would be protected
from disclosure by a common law privilege. Given
my view of the clear meaning of subsection 6.5(5) it
is also unnecessary for me to consider this issue.
It is not relevant to the interpretation of this section
whether the information might or might not be avail
able to the respondent Gill under some other legisla
tion. It appears to be common ground that the infor
mation could not be obtained under the Access to
Information Act. 6 It is conceivable that the informa
tion might be available to the pilot in question under
the Privacy Act 7 but there would also appear to be
grounds upon which the Minister could refuse to dis
close such information. 8 I am not satisfied that there
is any inconsistency between the Privacy Act and the
Aeronautics Act and, even if there were, one would
have to consider which Act should prevail, a matter
not argued before me. It may be noted, however, that
the provisions of the Aeronautics Act in question
appear to have been adopted after the enactment of
the Privacy Act.
Can the Tribunal Decide Charter Issues?
It is necessary to consider this issue next because if
the Tribunal had no jurisdiction to decide Charter
issues this Court may also lack the jurisdiction to
review such decisions. 9
What the Tribunal member was really doing in this
case was applying subsection 52(1) of the Constitu
tion Act, 1982 [Schedule B, Canada Act 1982, 1982,
c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]
which provides that:
t, R.S.C., 1985, c. A-1.
7 R.S.C., 1985, c. P-21.
K See, e.g., s. 22(1)(a)(ii) and (b)(ii).
9 Tétreault-Gadoury v. Canada (Employment and Immigra
tion Commission), [1991] 2 S.C.R. 22, at pp. 37-38.
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.
The Tribunal member was saying, in effect, that sub
section 6.5(5), if it purports to protect the documents
in question from disclosure, is of no force or effect
because it is contrary to section 7 of the Charter.
Recent Supreme Court of Canada decisions have
confirmed that where an administrative tribunal has
an express authority to interpret and apply statutesl°
or where it has been expressly authorized to deter
mine questions of lawll it may apply the Charter to
determine the validity of laws it is applying. In
Tétreault-Gadoury v. Canada (Employment and
Immigration Commission) 12 the Court also held that
such power may be implied even though not
expressly granted. In that case the Court was trying to
determine whether a board of referees under the
Unemployment Insurance Act had authority to decide
Charter issues when dealing with claimants' appeals.
The Act is silent on whether boards of referees have
the power to determine questions of law but it
expressly provides that the umpires who hear appeals
from boards of referees have the jurisdiction to deter
mine if the boards have erred in law. The Supreme
Court deduced from this that Parliament did not
intend boards of referees to determine questions of
law, expressly leaving that function to the umpires,
and thus boards of referees cannot decide Charter
issues. In the present case it is common ground that
the Aeronautics Act is silent on the matter of whether
Tribunal members or the Civil Aviation Tribunal
itself can determine questions of law. The Act does
give important functions to the Tribunal and requires
it and its members to provide to the Minister and the
holder of a licence
7.1...
(6) ... a full opportunity consistent with procedural fairness
and natural justice to present evidence and make representa-
10 Douglas/Kwantlen Faculty Assn. v. Douglas College,
[1990] 3 S.C.R. 570.
11 Cuddy Chicks Ltd. v. Ontario (Labour Relations Board),
[1991] 2 S.C.R. 5.
12 Supra, note 9.
tions in relation to the suspension, cancellation or refusal to
renew under review. 13
Members of the Tribunal have the powers of a com
missioner under Part I of the Inquiries Act. 14 In the
Aeronautics Act there is not a negative implication
similar to that in the Unemployment Insurance Act
where in the hierarchy of appeals the umpires are
expressly given power to decide questions of law and
boards of referees are not. In my view it should not
be lightly concluded that a tribunal has no authority
to decide questions of law and constitutionality: gen
erally speaking tribunals should endeavour to act
consistently with the law and must form some view
as to what the law is, including the meaning of the
Charter which is, as part of the Constitution, "the
supreme law of Canada". The absence of such a
power in the Civil Aviation Tribunal could also mean
that this Court would be precluded from deciding
Charter issues in reviewing Tribunal decisions. 15 I
therefore conclude that the Tribunal member had in
this instance the power to make an initial decision as
to any Charter issue properly before him.
What happened in this case, however, underlines
the need for restraint which tribunals should show in
dealing with Charter issues. A practical disadvantage
which tribunals often have in dealing with Charter
issues is exemplified by this case: there was no coun
sel on one side, and counsel for the Minister and the
intervenor doctors had apparently not been warned
that this issue was to be addressed. In these circum
stances, as no party had raised the section 7 issue and
it did not constitute a fundamental jurisdictional issue
which had to be decided before the Tribunal could
proceed, it would have been preferable that the Tribu
nal not address it. At the very least, the Tribunal
should have given notice to the parties and allowed
them some time for preparation for argument on this
13 S. 7.1(6).
14 Aeronautics Act, supra, note 1, s. 37(4) [as enacted idem,
s. 5].
15 See Tétreault-Gadoury, supra, note 9; and Armadale
Communications Ltd. v. Adjudicator (Immigration Act), [1991]
3 F.C. 242 (C.A.), at p. 246.
specific issue. 16 Further, even if section 7 were prop
erly before the Tribunal, a tribunal like a court should
decline to decide Charter issues where on the facts of
the particular case it is not necessary to do so. As I
will demonstrate below, the facts here did not amount
to any denial of fundamental justice so as to engage
section 7 of the Charter.
Did the Tribunal Correctly Apply Section 7 of the
Charter?
I have concluded that for several reasons section 7
has no bearing on the matter in issue here.
Section 7 of the Charter provides:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in accor
dance with the principles of fundamental justice.
It will be seen that for a violation of this section to
occur, it must be found both that an interest protected
by section 7 ("life, liberty and security") is being
deprived, and that such deprivation is not "in accor
dance with the principles of fundamental justice".
It was not argued before either the Tribunal
member or me that any interest protected by section 7
was at stake in this matter. At most, the respondent
Gill was being denied at least temporarily the valida
tion of his pilot's licence. More specifically what was
involved at this stage was whether or not he was
obliged to provide a further psychiatric assessment in
order that an informed decision might be taken as to
the renewal of his LVC. I am satisfied that these
interests are far removed from the interests protected
by section 7: those of "life, liberty and security of the
person". There is no issue of life involved. In general
the kinds of "liberty" and "security of the person"
protected by section 7 are those normally affected by
the judicial system. As Lamer J. [as he then was] said
16 Effective February 1, 1992 such a Tribunal is required to
give at least ten days' notice to the Attorney General of
Canada before judging an Act of Parliament to be invalid,
inapplicable or inoperable: Federal Court Act, R.S.C., 1985, c.
F-7, s. 57, as amended by S.C. 1990, c. 8, s. 19.
in a separate opinion in Reference Re ss. 193 and
195.1(1)(c) of the Criminal Code (Man.):
. the restrictions on liberty and security of the person that s.
7 is concerned with are those that occur as a result of an indi
vidual's interaction with the justice system, and its administra
tion.... The interests protected by s. 7 are those that are prop
erly and have been traditionally within the domain of the
judiciary ... . 17
He also noted that section 7 comes under the heading
of "Legal Rights" in the Charter which, when it is
taken together with sections 8 to 14, must be taken to
refer to the kinds of procedural and substantive rights
protected in those sections, mainly in relation to
criminal prosecutions. This does not preclude the
protection of bodily security of the person against
other types of official action. But even if the interest
of Gill at stake is seen to be the possible loss of his
licence (instead of, as I view it, a mere obligation to
provide a further psychiatric assessment), and assum
ing that this would deprive him of his ability to work
(a matter on which there was no evidence) this would
be an economic loss of a kind which is not normally
protected by the Charter. 18
Further, assuming that there were some section 7
interests at stake, there was no denial of "fundamen-
tal justice". In concluding this I am assuming for pre
sent purposes that the requirements of the constitu
tional guarantee of "fundamental justice" are no
higher than the common law requirements of fairness
or natural justice, the constitutional significance
being that even if a legislature tries to abolish com
mon law rights to fairness or natural justice section 7
may, in proper circumstances, preserve those rights.
Applying the highest common law requirement, that
of natural justice, the refusal of the Minister in prin
ciple to disclose any other subsection 6.5(1) reports
not already disclosed did not in the context amount to
a denial of natural justice.
17 [1990] 1 S.C.R. 1123, at p. 1173.
18 See e.g. Weyer v. Canada (1988), 83 N.R. 272 (F.C.A.), at
p. 276; Re Bassett and Government of Canada et al. (1987), 35
D.L.R. (4th) 537 (Sask. C.A.), at p. 567.
In applying the tests of natural justice it is first
important to understand the nature of the procedure
in which the Minister refused to produce the reports.
With respect, I believe the Tribunal member assumed
from the outset that this was in the nature of a prose
cution of the respondent Gill. This is apparent from
his first decision on August 1 after the procedural
hearing by conference call, when he referred to sec
tion 7 as justifying his order for disclosure and cited
in support thereof two decisions involving prosecu
tions. During the main hearing on September 11, he
referred to the need of Mr. Gill to have certain infor
mation "to prepare a full and complete defence". 19 In
his decision rendered after that hearing as quoted
above he then refers to section 7 and Mr. Gill's "gen-
eral constitutional right to full and complete disclo
sure".
This view of the matter stemmed, I believe, from
the Tribunal Member's assumption that what was in
issue in the review being conducted by him was
whether the Department had had reasonable grounds
to request the information from Gill in the first place.
With respect, I believe this is a misunderstanding of
the review process authorized by subsection 7.1(3) of
the Aeronautics Act as quoted above. What is review-
able pursuant to subsection (3) is a decision of the
Minister referred to in subsection (1). In this case it
was a decision under paragraph 7.1(1)(b) to suspend
Gill's licence on the ground that he had not complied
with a condition subject to which the licence was
issued, namely he had failed to provide a further
medical report when requested to do so. Subsection
7.1(1) does not refer to any decision of the Minister
to request further medical reports. The only relevant
"decision" authorized there is a decision, inter alia,
to suspend the LVC because of a failure to provide
reports, and that is the "decision" which the Tribunal
member is authorized under subsection 7.1(3) to
review. The only matters pertinent to such a review
are: was a demand sent by the proper person to Gill;
did Gill fail to provide the further information
requested; and if so, was a decision taken by the
proper person to suspend his LVC? That such a
review is not an empty process is demonstrated by
19 Applicant's record, at p. 270.
the fact that Gill had on a previous occasion success
fully challenged a suspension of his LVC because the
proper departmental official had not signed the
request for more medical information.
At the hearing on September 11, 1991, however,
the Tribunal member clearly proceeded on the basis
that he was entitled to assess the reasonability of the
decision of the Acting Regional Aviation Medical
Officer to make the request for further information
on May 27, 1991. Consistent with that approach he
obviously formed the view that Mr. Gill could not
properly challenge the reasonability of the decision to
ask for more medical information without having all
medical reports, including privileged reports made
under subsection 6.5(1). Nothing in the Personnel
Licensing Handbook, the Regulations or the Act
requires such a characterization of the review process
at this stage. Those instruments do not support the
view that in a subsection 7.1(3) review of a decision
under paragraph 7.1(1)(b) a Tribunal member has to
reach any conclusion as to whether the Regional Avi
ation Medical Officer had good medical grounds for
requesting further medical information from a licence
holder before an assessment was completed of his
medical fitness for a renewal of his LVC. It must he
kept in mind that if the Tribunal member were to find
at this stage that all the necessary procedures had
been carried out before a licence was suspended due
to failure to provide further medical information, and
if the pilot then provided such information, and if the
Department then concluded that he was not fit to
have a licence, there would be a further right of
appeal of a decision made under paragraph 7.1(1)(a)
to suspend or cancel the licence on medical grounds
and at that time the medical grounds could be fully
canvassed. It is difficult to believe that Parliament
intended instead that there be two review hearings on
medical grounds, particularly when the first hearing
would simply pertain to a request for a further medi
cal report from the pilot.
Even if the requirements of section 7 of the Charter
apply here, and if the correct view of the review func-
tion under subsection 7.1(3) is that of adjudicating on
the reasonability of a request for more medical infor
mation, I am respectfully in disagreement with the
Tribunal member that the production of all subsection
6.5(1) reports, real or hypothetical, was necessary in
the interests of fundamental justice. Firstly, there was
no clear evidence that such reports existed. Secondly,
the evidence of Dr. Haskell, Regional Aviation Medi
cal Officer at the time of the hearing who testified on
the procedures employed by the medical advisors to
Transport Canada, was to the effect that reports
received under section 6.5 are not used directly in
making a medical assessment of a pilot. 20 Thirdly,
Dr. Wallace who was Acting Regional Aviation Med
ical Officer in May, 1991, who made the actual deci
sion to require more medical information from Gill
and who sent the request to him on May 27, 1991,
testified that the only information he had before him
was the materials which had already been disclosed
to Gill by the time of the hearing. That evidence was
not challenged. Fourthly, by any common sense view
of the matter it is amply clear that Gill was fully
aware of sufficient reasons for Dr. Wallace to request
this information. By the time of the hearing on Sep-
tember 11, 1991 he had had access to: the letter from
Dr. Evans of August 21, 1990 requesting a report
from Dr. Boylan because of the Department's con
cern over Gill's "past emotional problems requiring
psychiatric assessment"; similar information from a
telephone conversation with Dr. Evans on August 24,
1990 confirmed by a letter from Dr. Evans of that
date; the letter which Dr. Moore had sent to Dr.
Evans on June 5, 1990; the report made to Dr. Moore
by Dr. Boylan on April 30, 1990; and the medical
reports of Drs. Hale, Knipping and Jovey. Anyone
looking at this material in an objective fashion would
appreciate the source and nature of the Department's
concerns. Among the facts which might be noted
would be Mr. Gill's negative answers to the question
of whether he had had "psychiatric/neurological
problems" when there was other material originating
in his own statements to Drs. Moore and Boylan
which might suggest the contrary. This material when
taken together would surely enable Mr. Gill and his
medical advisors to provide further reports pertinent
to the Department's concerns. Even if it was the duty
of the Tribunal member to decide whether there were
20 Applicants' record, at p. 236.
reasonable grounds for the demand being made for
more information (which I do not accept) this was
surely amply demonstrated by that material. I do not
think that analogies to criminal prosecutions and
undisclosed information from informers have any
bearing on the matter. In my view even if the Tribu
nal member had some right and responsibility to look
into the reasonability of the request for information,
that should extend no farther than satisfying himself
that the request was made in good faith, and would
not require him to decide that the need for further
information was demonstrated on the balance of
probabilities or beyond a reasonable doubt.
I thus conclude that the requirements of fundamen
tal justice would not require the disclosure of the
information in any undisclosed reports (real or hypo
thetical) made under subsection 6.5(1). Therefore it
was unnecessary to consider the Charter issue.
Disposition
I will therefore issue an order to quash the decision
of the Tribunal member, made on September 11 and
explained in his reasons dated September 18, 1991, to
the effect that the Minister of Transport must disclose
any medical information concerning the respondent
Gill given to the Department of Transport under the
provisions of section 6.5 of the Aeronautics Act.
I am going to order costs against the respondent
Gill. It is no mere accident that he has found himself
before this Court defending the decision of the Tribu
nal member to order the disclosure of all section 6.5
reports. It is clear from the record that he has
embarked on a course of raising every possible pro
cedural objection in lieu of providing the medical
information first requested of him some eighteen
months ago. He specifically pressed for disclosure of
section 6.5 reports at the Tribunal hearing even in the
face of the evidence of Dr. Wallace, who made the
decision to request further medical information
which led to the suspension under review by the Tri
bunal, to the effect that he had not in making that
decision taken into account any material not already
disclosed to Gill. Gill's objections having been held
to be unfounded in law or in fact, he should pay the
costs of this motion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.