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Amendment 9 (1997)

CAT File No. W-1334-21

CIVIL AVIATION TRIBUNAL

Between:

Robert O. Jensen

- and -

Minister of Transport

Aeronautics Act, S.C., c.A-2, s.7.1(1)

Cancellation of the Aircraft Maintenance Engineer Licence (AME) - Tribunal Bias - Adjournment

The Appellant owner and president of Spur Aviation Ltd. failed on numerous occasions to comply with various applicable regulations and standards. The Minister canceled the Appellant's Aircraft Maintenance Engineer Licence (AME).

On review, the Tribunal confirmed the Minister's decision. Based on the evidence laid before the Tribunal, the Member came to the conclusion that the Appellant did not meet the standards set for the holder of an AME licence.

On appeal, the Tribunal's decision was upheld. The first ground of the appeal, that the evidence presented at the hearing was incorrect and not factual, was dismissed on the basis that the Appellant had had the opportunity to refute the evidence at the hearing but had voluntarily waved that right by choosing not to be in attendance.

The Appeal Panel also rejected the Appellant's claim that the Tribunal's decision had been biased because the Member hearing the case had also heard an earlier case involving the cancellation of Spur Aviation Ltd.'s Approved Maintenance Organization Certificate. Due to the fact that the Member had ruled against Spur Aviation Ltd. in the earlier case, the Appellant claimed that the second hearing could not be conducted in adherence with the principles of natural justice. The Appeal Panel disagreed, stating that there was no actual or reasonable apprehension of a personal or pecuniary interest on the part of the Member in either case that would indicate any bias on his part. They concluded that the Member had simply decided two different cases based on similar evidence.

The Panel likewise dismissed the Appellant's assertion that a Tribunal Member could not sit in judgment of their own bias. They ruled in favor of expediency by reasoning that hearings should not have to come to a halt every time someone alleges bias. Instead, the availability of judicial review and the appeals process protect against such possible miscarriages of justice from occurring by ensuring that charges may eventually be heard by a disinterested judiciary.

NOTE: There is a Federal Court of Canada hearing pending.

See Spur Aviation v. Minister of Transport (CAT File Nos. W-1282-20, W-1283-09, W-1284-09) as the decisions in each case are based on similar evidence.

REVIEW DETERMINATION Mitchell

October 7, 1997
Edmonton, Alberta

I find that Robert O. Jensen does not adhere to the applicable standards set for the holder of an AME licence, and I confirm the Minister's decision to cancel said Licence.

REASONS FOR REVIEW DETERMINATION

A Review Hearing on the above matter was held August 25, 1997 at 10:00 hours at the Federal court of Canada, in the city of Edmonton, Alberta.

At the outset the Minister's representative requested that an amendment be made to Tables 3, 4 and 5 of Appendix "A" to the Notice of Cancellation. The changes were all deletions with the exception of three items transferred from Table 2 to Table 3.

The amendment was accepted. The amended Tables are as follows:

1) Table 1,

a) DELETE: items 3, 5, 10, 11, 13, 14, 16, 17, 18, 19, & 20

b) REname: Air Regulation/Aeronautics Act/ANO Violations

c) RENUMBER: remaining items 1 - 10

2) Table 2,

a) DELETE: items 12, 13, & 14

b) TRANSFER: items 12, 13, & 14 to TABLE 3 as items 36, 37, & 38

c) RENUMBER: items as 1 - 13

3) Table 3,

a) DELETE: items 36 - 56 inclusive

b) ADD: items 12, 13, & 14 from TABLE 2 as items 36, 37, & 38

4) Table 4,

a) DELETE: entire TABLE

5) Table 5,

a) DELETE: items 1, 3, 4, 6, 7, 10, 11, & 12

b) REname: Table 5 to TABLE 4, Suspensions of Approved Maintenance Organization Documents,

c) RENUMBER: items 1 - 4

For ease of reference, the amendments have been incorporated into the Notice of Cancellation as follows:

"Pursuant to section 7.1(1)(c) of the Aeronautics Act, the Minister of Transport has decided to cancel the above indicated Canadian aviation document for the following reason(s):

The public interest, and in particular the record in relation to aviation of Robert O. Jensen, warrant cancellation. The elements of that public interest are listed as Grounds for the Cancellation in the attached Appendix A.

EFFECTIVE DATE OF CANCELLATION: 23 August 1996

APPENDIX A to NOTICE OF CANCELLATION

Grounds for the Cancellation

Tables 1 to 5 below itemize the greater part of the record with respect to aviation of Robert O. Jensen, or under the direct supervision of Robert O. Jensen, and in the opinion of the Minister that record shows that Robert O. Jensen has not consistently exercised the privileges of his Aircraft Maintenance Engineer Licence in a competent, responsible and safe manner, and in compliance with applicable regulations and standards.

TABLE 1

AIR REGULATIONS/AERONAUTICS ACT/ ANO VIOLATIONS

TABLE 2

SUSPENSIONS OF FLIGHT AUTHORITIES AND FINDINGS OF UNFIT FOR FLIGHT

TABLE 3

AIRCRAFT CONDITION NOTICES (FAILURE TO MEET APPLICABLE STANDARDS)

TABLE 4 (PREVIOUS TABLE 5)

SUSPENSIONS OF APPROVED MAINTENANCE ORGANIZATION DOCUMENTS

OVERVIEW

Mr. Robert O. Jensen, owner and president of Spur Aviation Ltd., held Aircraft Maintenance Engineer (AME) Licence M036258 and exercised the privileges of that licence in the operation of Spur Aviation Ltd. Mr. Jensen acted as Director of Maintenance for certain periods of time in the operation of Spur Aviation Ltd.

The Minister of Transport cancelled Mr. Jensen's AME Licence on August 23, 1996 for reasons shown above in the Notice of Cancellation.

EVIDENCE

The Minister's first witness, R.J. Murray was acting as Regional Director of Airworthiness at the time of the cancellation of Mr. Jensen's AME Licence. His authorization to act is spelled out in Exhibit M-1, Ministerial Delegation of Authority.

Exhibit M-1: Ministerial Delegation of Authority.

Exhibit M-2: Acting Appointment - Airworthiness for Dick Murray from August 1, 1996 to August 30, 1996 inclusive, signed by H.S. Wiltzen and Roger Beebe.

Exhibit M-3: Notice of Cancellation signed by R.J. Murray as Acting Regional Director Airworthiness (Edmonton), dated August 23, 1996.

Mr. Murray, when asked, stated that he had been contacted by Superintendent Swanson of the Yellowknife Office who at the time was reviewing the files of Spur Aviation Ltd. and those of Robert O. Jensen, and he believed that under the Aeronautics Act the record of Mr. Jensen failed to meet the standards. A package of documents had been put together by Mr. Swanson. This was reviewed by Mr. Murray, and he was satisfied that the cancellation was in order.

Inspector Murray said that Inspector Alston had worked with Inspector Swanson in putting the report together.

Exhibit M-4: Canada Post AR card dated August 27, 1996 and signed for by Mildred Putner.

When questioned further Inspector Murray said that he accepted the recommendations of Inspectors Swanson and Alston as he had worked with them for the previous nine years with Transport Canada and that he found them to be objective, reliable and honest.

Exhibit M-5: LETTERS PATENT filed to incorporate Spur Aviation Ltd.

The Minister's second witness, Inspector David Alston, was called and sworn. He stated that, in reviewing the file for Mr. Jensen and Spur Aviation Ltd., Mr. Jensen had been consistently operating in violation of the Act, the Air Navigation Orders and Air Regulations for a period of over thirty years, and this had not improved over time.

Exhibit M-6: TABLE 1 listing for the record a number of Air Regulations/Aeronautics Act/ANO Violations against Mr. Jensen and Spur Aviation Ltd. The specific violations and actions in the list of ten are covered in the documents attached to Table 1.

Exhibit M-7: TABLE 2 is a list of Suspensions of Flight Authorities.

Inspector Alston explained that a Certificate of Airworthiness (C of A) Suspension would normally mean that the aircraft does not meet the applicable standards of airworthiness. He said that a detention would apply when the aircraft no longer has valid flight authority or valid C of A.

Inspector Alston went through Table 2 and explained the Suspensions and Detentions. This documentation is attached to Table 2.

Exhibit M-8: TABLE 3 consisting of 38 Notices of Aircraft Inspection.

Inspector Alston again explained for clarification that a C of A suspension is given when an aircraft clearly does not meet requirements or standards of airworthiness; a Notice of Aircraft Inspection is given when records or documents for the aircraft condition are highly suspect.

Inspector Alston explained some of the 38 items listed, the documentation for each is attached to Table 3. It was further pointed out that the maintenance, records and aircraft condition did not meet the standards. Prior to the new requirement for AMO's, Robert Jensen was the AME of record in this list.

Exhibit M-9: TABLE 4 - Suspensions of Approved Maintenance Organization Documents.

This Table 4 with attached documentation shows the Suspension of Approved Maintenance Organization documents four times during 1993 and 1994. Inspector Alston stated that it was significant to him that not only did the company have problems with its Maintenance Organization, but its quality assurance program failed to function, and he felt that the responsibility was that of Robert Jensen.

CONCLUSION

Mr. Robert O. Jensen made application to the Civil Aviation Tribunal for a Review Hearing regarding the cancellation of his AME Licence number M036258 by the Minister of Transport.

Mr. Jensen was clearly aware of the date, time and location of his requested Review Hearing, and he chose not to be in attendance.

The records show that Mr. Jensen has certified aircraft as airworthy when the condition of the aircraft did not meet the applicable standards for airworthiness. He has been sanctioned for such actions on several occasions.

In 1993 and 1994 his Aircraft Maintenance Organization was suspended four times as it did not meet and comply with the established standards for maintenance of the aircraft under his control.

In September 1995 an aircraft inspected and certified by Mr. Jensen had its Certificate of Airworthiness suspended as the standards were not met.

The following is from Exhibit M-7 (Table 2):

On April 21, 1994 Piper PA23-250 C-GSBK, is under Notice of Detention as propellers S/N BP5267 and BP1195 are overdue for overhaul. A 30-day extension allows until July 28, 1994 for overhaul.

On August 2, 1994 Piper PA23-250 C-GSBK still has propellers S/N BP5267 and BP1195 installed which were overdue for overhaul July 28, 1994. The C of A of the aircraft is now under Notice of Suspension.

On September 14, 1994 Piper PA23-250 C-GSBK is now in service with one of the propellers S/N BP8214 installed that exceeds the five-year TBO (time between overhauls) specified in Spur Aviation Ltd. Approved Inspection Program. The C of A of the aircraft is again under Notice of Suspension.

The following is from Exhibit M-8 (Table 3):

Notices of Aircraft Inspection were issued during audits on Spur Aviation, the majority of them during the years 1993 and 1994 when Robert Jensen was the Director of Maintenance. The first fifteen items, for example, were from audits carried out by Transport Canada in April, September and December of 1994. It should be noted that some aircraft can be found listed more than once in this group, as many as three times in three audits in nine months.

The four Tables presented as Exhibits M-6, M-7, M-8 and M-9 total 65 items of concern for aircraft condition during a period when Robert Jensen was the Aircraft Maintenance Engineer of record or was the Director of Maintenance for Spur Aviation Ltd.

The Transport Canada Inspectors, in evaluating Robert O. Jensen's actions in inspecting and signing out aircraft when they were in fact not airworthy, in very many cases concluded in a joint opinion that Robert O. Jensen should not hold an AME Licence.

I accept the Acting Appointment - Airworthiness - Temporary Signing Authority of Inspector R.J. Murray. This is covered in Exhibit M-2.

R.J. Murray, Acting Regional Director Airworthiness, signed and issued a Notice of Cancellation for Robert O. Jensen's AME Licence, Number M036258, on August 23, 1996. (Exhibit M-3)

The elements of public interest are listed as Grounds for Cancellation.

DETERMINATION

I find that Robert O. Jensen does not adhere to the applicable standards set for the holder of an AME Licence, and I confirm the Minister's decision to cancel said Licence.

APPEAL DETERMINATION Ogilvie, Ahmed, Clarke

June 5, 1998
Edmonton, Alberta

The Appeal Panel finds that there are no grounds for allowing the appeal and that the Member's ruling of the first instance is to be upheld and the Appellant's AME licence cancelled.

An Appeal Hearing on the above matter was held on March 20, 1998, at 10:00 hours at the Federal Court of Canada in Edmonton, Alberta.

BACKGROUND

Mr. Jensen appealed the Determination of Gordon Mitchell made October 7, 1997 in which Mr. Mitchell of the Civil Aviation Tribunal confirmed the Minister's decision to cancel Mr. Jensen's aircraft maintenance engineer (AME) licence.

Mr. R.O. Jensen was the owner and President of Spur Aviation Ltd. During certain periods of time, he was also Director of Maintenance. He held and exercised the privileges of an AME licence through the operation of Spur Aviation Ltd. On April 29, 1996, the Operating Certificates and Approved Maintenance Organization Certificate relating to Spur Aviation Ltd. were cancelled by Transport Canada, pursuant to paragraph 7.l(l)(c) of the Aeronautics Act citing the following reasons:

The public interest, and in particular the record in relation to aviation of Spur Aviation Ltd. and Spur Aviation principal Robert O. Jensen, warrant cancellation.

Spur requested of the Civil Aviation Tribunal a review hearing of that decision. A file was opened on May 30, 1996, and a hearing scheduled for October 16 and 17, 1996. By letter of September 30, 1996, Mr. Bassie, counsel for Spur, requested an adjournment in order to ascertain more information and requested that the hearing be scheduled for three days. The request was granted. The hearing was rescheduled to March 25, 26 and 27, 1997 with Mr. G. Mitchell assigned as the hearing member.

On August 23, 1996, between the cancellation of Spur's Certificates and the hearing to decide those allegations, Mr. Jensen's AME licence was cancelled by Transport Canada, pursuant to paragraph 7.1(1)(c) of the Aeronautics Act citing the following reasons:

"The public interest, and in particular the record in relation to aviation of Robert O. Jensen, warrant cancellation."

Mr. Jensen requested a review hearing of the cancellation of his AME licence. A file was opened on September 16, 1996. As can be seen, both the Spur and Jensen files involved cancellation of a document in the public interest, regarding the record in relation to aviation of Mr. Jensen. As the allegations were substantially similar, and Mr. Jensen a party to both, the Registrar suggested that the hearings be heard together, a normal Tribunal practice. Transport Canada requested that they be heard separately. Mr. Bassie did not object; therefore, a separate hearing for Mr. Jensen was subsequently scheduled for April 17 and 18, 1997. Mr. G. Mitchell was assigned as the hearing member.

The hearing regarding Spur Aviation proceeded on March 25, 26 and 27, 1997. Mr. Mitchell rendered a written decision on May 22, 1997, which confirmed the Minister's decision to cancel the Approved Maintenance Organization Certificate held by Spur Aviation. That decision was not appealed.

The hearing regarding Mr. R.O. Jensen commenced on April 17, 1997. Mr. Bassie, also acting as counsel for Mr. Jensen, objected to Mr. Mitchell presiding at Mr. Jensen's hearing as Mr. Mitchell had recently presided over the Spur Aviation hearing. Both Mr. Bassie and Mr. Mitchell conferred with the Tribunal registry at that point. The hearing was adjourned to allow Mr. Bassie to submit to the Civil Aviation Tribunal written objections, regarding Mr. Mitchell acting as the hearing officer. Mr. Bassie's letter of May 6, 1997 to the Tribunal stated his position in the second paragraph on the following terms:

"In my opinion it was totally improper to appoint Mr. Mitchell, and having been so appointed, Mr. Mitchell should have declined. Mr. Mitchell had made certain findings without hearing all of the evidence and made certain rulings detrimental to Mr. Jensen and Spur Aviation. I made it clear to Mr. Mitchell that I did not agree with his rulings or his findings, and therefore it was improper for Mr. Mitchell to take part in any other hearings in relation to either Spur, Great Bear or Mr. Jensen."

Mr. Mitchell ruled on that motion by letter dated June 12, 1997 wherein he stated:

"I know of no legal prohibition which precludes me from hearing a case merely because it may involve similar facts and/or witnesses and no law has been cited in support of such prohibition.

Therefore I reject the motion to recuse myself as Hearing Officer and hereby direct that the Review Hearing on the above matter proceed as scheduled on August 25 & 26, 1997."

Although the motion had been ruled upon and a Notice of Review Hearing issued, several more letters were sent to the Tribunal by either counsel Bassie or directly by his client Mr. Jensen objecting to Mr. Mitchell's appointment.

In letters of August 15, 1997 and August 21, 1997, Mr. Jensen stated that he would not present his case before Mr. Mitchell. The Registrar replied to all correspondence reiterating that the objection to Mr. Mitchell had been ruled upon and that the Tribunal had no further jurisdiction to deal with the matter.

The review hearing was held on August 25, 1997 before Mr. Mitchell. Neither Mr. Jensen, Applicant, nor his counsel, Mr. Bassie, attended the hearing.

Mr. Mitchell rendered a Review Determination dated October 7, 1997 which stated:

"I find that Robert O. Jensen does not adhere to the applicable standards set for the holder of an AME Licence, and I confirm the Minister's decision to cancel said licence."

By letter of October 27, 1997, Mr. Bassie notified the Tribunal that he had been instructed to appeal that determination.

GROUNDS OF APPEAL

The Appellant specified six grounds of appeal as follows:

1. The Determination by Mr. Mitchell was made on one sided evidence which evidence is not correct and not factual;

2. Robert Jensen had objected to Mr. Mitchell acting as the hearing officer as Mr. Mitchell had heard similar evidence in a previous case and therefore had prior knowledge and as a result would be prejudiced against Mr. Jensen;

3. Mr. Jensen had asked for a hearing officer other then Mr. Mitchell and had indicated he would not appear on August 25 and 26 as it would be a waste of time and money as Mr. Mitchell had already decided against Mr. Jensen on similar evidence. This was totally ignored by Mr. Mitchell;

4. Mr. Mitchell did not conduct the first hearing in accordance with the principle of natural justice and certainly would not, and as obvious, did not conduct this hearing in accordance with the principle of natural justice;

5. The matter should have been adjourned as requested by Mr. Jensen and a new hearing officer appointed;

6. Such further grounds as may appear from a reading of the transcript.

Further to the application, a Notice of Appeal Hearing was issued on January 23, 1998, scheduling the hearing for March 20, 1998.

PRELIMINARY MOTION

APPELLANT

On March 19, 1998, at 16:40 local time in Ottawa, the Registrar received a request for an adjournment from Mr. Bassie's firm. It stated:

"This is to inform you that Mr. Jensen has been tied up in Yellowknife in Court proceedings the whole week and it is impossible for him to be in Edmonton for Friday morning, March 20th. We will be asking for an adjournment tomorrow morning. Someone from our office will be present requesting the adjournment."

The members of this panel were already en route to Edmonton when the adjournment request was received by the Tribunal.

At the commencement of the hearing, Mr. Holder of Mr. Bassie's firm made a motion for an adjournment of the proceedings. He explained that Mr. Jensen and Mr. Bassie had both been in Queen's Bench Trial in Yellowknife that week. Mr. Jensen was in Yellowknife and Mr. Bassie was presently in Edmonton, but both had been weakened by a flu virus and were now incapacitated.

RESPONDENT

Ms. Caminsky, for the Minister, opposed an adjournment. She had only been made aware of the request on the morning of the hearing. She argued that any request could have been made in a timely manner as Mr. Bassie would have known in advance of the Queen's Bench action. Although Mr. Bassie was now ill, the file could have been delegated within the firm and thus, Mr. Jensen would still be adequately represented. She argued that the balance of convenience favoured continuing with the hearing.

RULING

The motion was denied. In coming to that conclusion, we considered that the written request for adjournment was not received by the Tribunal in a timely manner and that Transport Canada had received no notice until the morning of the hearing. More troublesome, was the variance in the reasons for the request. The written reasons stated that Mr. Jensen was tied up in Court proceedings "the whole week," and it would thus be impossible for him to be in Edmonton on Friday. In the oral request, it was revealed that Mr. Jensen and Mr. Bassie were free from their other commitment, but were both ill. Mr. Bassie had actually returned to Edmonton on the 19th, the day the written request was received. A review of the correspondence between Mr. Bassie and the Tribunal revealed that several dates had been rejected by Mr. Bassie and that he had specifically chosen March 20, 1998 himself. The combination of these circumstances led us to conclude that an adjournment should not be granted.

ARGUMENT

APPELLANT

As Mr. Bassie was not present, Mr. Holder engaged in oral argument on behalf of Mr. Jensen. Ms. Caminsky, for the Minister of Transport, produced written submissions and oral argument.

On ground one - Mr. Holder argued that notwithstanding proper notice to the parties and the Appellant's non attendance at the review hearing, the Appellant was still denied the right to properly address the allegations. This was due to a lack of disclosure to Mr. Jensen of certain information that would be relevant in the attempt to refute the allegations. As he could not ascertain such information, he could not put his view forward.

As to the second ground, Mr. Holder referred us to Mr. Bassie's letter wherein Mr. Bassie stated that it was improper to appoint Mr. Mitchell and improper for him to take part in any of the hearings regarding Spur, Great Bear or Mr. Jensen. He asked how difficult it would be to disqualify oneself in such circumstances and urged us that to have done so, would have been the proper solution. He also drew our attention to the letter of July 30, 1997 from the Registrar to Mr. Bassie. It is produced herein:

"Dear Mr. Bassie:

This is further to your letter of July 24, 1997 acknowledging receipt of the Notice of Review Hearing scheduled for August 25 and 26, 1997.

Your objection to Mr. Mitchell as Hearing Officer at this Review was ruled on by Mr. Mitchell on June 12, 1997. A subsequent telephone conversation on June 18, 1997 in response to your letter of June 17, 1997 advised that the Civil Aviation Tribunal has no further jurisdiction to deal with this matter once a motion has been ruled on.

Accordingly, the Review Hearing will proceed as scheduled on August 25 & 26, 1997 with Mr. Gordon Mitchell as Hearing Officer."

Mr. Holder argues that the tone and substance of that letter also indicates bias.

Regarding ground three: Mr. Holder asserted that Mr. Mitchell could not sit judgement of himself regarding his own bias.

On ground four: Mr. Holder stated that the hearing was not in accord with natural justice, as there was a likelihood of a reasonable apprehension of bias. He emphasized that it was not actual bias but the reasonable apprehension of bias. That was raised by the fact pattern of the case.

Ground five was encompassed by the remedy sought. Mr. Holder argued that a breach of natural justice had caused Mr. Mitchell to lose jurisdiction, so his finding could be of no legal effect. Therefore, he urged us to overturn the decision and submit the case to a new hearing before a different member.

RESPONDENT

Ms. Caminsky, on behalf of the Minister, had prepared written submissions on various issues. We asked her to confine herself to responding to the grounds of appeal and Mr. Holder's arguments. In addressing ground one, Ms. Caminsky stated that the Appellant's non attendance at review was by choice and that, had Mr. Jensen attended the hearing, he would have been able to address any disclosure issues as that was the proper forum in which to raise them.

As to ground two, the fact that Mr. Mitchell had heard the Spur review did not create an issue of bias according to Ms. Caminsky. She drew our attention to Mr. Mitchell's letter of June 12, 1997 to Mr. Bassie. She asserts that this letter makes clear that section 37 of the Aeronautics Act was the foundation of Mr. Mitchell's decision as he there stated:

"Pursuant to subsection 37(1) of the Aeronautics Act, I am bound to hear every Review Application in accordance with the principles of natural justice and fairness. This requires that I decide each case based on the evidence presented before me."

The Registrar's letter of July 30, 1997, she argued, was no more than a statement of jurisdiction.

Regarding ground three, the Minister argued that there was no evidence that Mr. Mitchell had already decided the issue. In fact his letter of June 12th, clearly expressed that he would decide each case on the evidence presented. As well, there was no prohibition to hearing matters involving the same parties as it was analogous to having multiple parties in an action.

As to ground four, the Respondent noted that it referred to Mr. Mitchell's conduct at the first hearing and as such was irrelevant to the consideration before us. The allegations regarding the first hearing could have been dealt with on an appeal of that case. Therefore, she argued that there had been no violation of the principles of natural justice and that the decision of Mr. Mitchell should stand.

THE LAW

Mr. Jensen's AME licence was cancelled pursuant to paragraph 7.1(1)(c) of the Aeronautics Act. That paragraph provides:

"7.1 (1) Where the Minister decides(...)

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

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

The elements of that public interest were listed as grounds for the cancellation and were attached as Appendix A. It consisted of five tables that itemize the greater part of the record with respect to aviation of Mr. R.O. Jensen or under the direct supervision of Mr. Jensen that, in the opinion of the Minister, showed that Mr. Jensen had not consistently exercised the privileges of his AME licence in a competent, responsible and safe manner and in compliance with applicable regulations and standards.

The authority of this panel to hear the appeal is found at subsection 7.2(3) of the Aeronautics Act where it is stated:

"(3) An appeal to the Tribunal shall be on the merits based on the record of the proceedings of the member of the Tribunal from whose determination the appeal is taken but the Tribunal shall allow oral argument and, if it deems it necessary for the purposes of the appeal, shall hear evidence not previously available."

DISCUSSION

Mr. Jensen was a principal of Spur Aviation, a legal entity that could only operate through a person. In this case it was Mr. Jensen. The allegations against both Mr. Jensen and Spur involve the record in aviation of Mr. Jensen. Thus, the two are intertwined. This appeal is only from the determination of the hearing officer in Mr. Jensen's review hearing of allegations regarding the Spur hearing, mention must be made of it as well. Those allegations are necessarily addressed herein.

The grounds of appeal have been previously listed. We will deal with each of them in order. Ground one: In an adversarial system, the proof of facts is controlled by the parties. It is the norm that the evidence produced by one party supports that party's contention. When the other party, of its own volition, does not appear to proffer its evidence or to contest the other's, the only evidence before the trier of fact must necessarily be one sided.

As to the allegation that the evidence is not correct and not factual, the proper course would have been to test it, to refute it on cross-examination at the hearing. That was not done. At this appeal, no proof was proffered that the evidence was not correct or factual. It remains a mere statement.

Mr. Holder did broaden the scope of ground one in his oral presentation. He argued that notwithstanding the Appellant's non attendance at the review hearing, he was still denied the right to properly address the allegation, as he had not received proper disclosure. More information was needed regarding the allegations.

The record contains many letters from Mr. Bassie regarding the hearing, but none that complained of a lack of disclosure. Had disclosure been a genuine issue, it could have been raised in a preliminary motion or at the hearing itself. That was not done.

Given the foregoing we find that the first ground of appeal cannot be sustained.

A comparison of ground two and ground three, reveals that they are actually the same complaint. Utilizing slightly different words, they both allege that Mr. Jensen had objected to Mr. Mitchell on the basis that Mr. Mitchell had heard similar evidence in a previous case (Spur). The second ground says that as a result, Mr. Mitchell would be prejudiced against Mr. Jensen, whereas the third ground states Mr. Mitchell already decided against Mr. Jensen on similar evidence. As prejudice has the meaning of "a forejudgment; bias; preconceived opinion." (Black's Law Dictionary Second Edition), alleging prejudice is the same as saying that Mr. Mitchell had already decided. Therefore, we will address them together.

Tribunals that utilize particular expertise of hearing members, such as this one, may often be in a position to hear cases regarding the same parties. That concept has been addressed in Law. In the text Administrative Law in Canada¹, the proposition has been stated as follows:

"A tribunal that has decided a previous dispute between the same parties is not considered biased in favour of the winning party for that reason alone. Some tribunals, particularly those that regulate business activities, have repeated dealings with the same parties. They are not held to be biased merely because they have previously dealt with the same parties on similar matters. However, there may be a reasonable apprehension of bias if the panel had previously decided against one party on the basis of credibility, or if the same panel was re-hearing a matter after its previous decision was quashed by a court."

This instance is not a re-hearing of a matter after a panel's previous decision was quashed by a court, nor was Mr. Mitchell's determination made on the basis of credibility.

Mr. Holder directed our attention to a letter of May 6, 1997, from Mr. Bassie to Mary Cannon, Tribunal Registrar, wherein Mr. Bassie makes his point that it was improper to appoint Mr. Mitchell and improper for Mr. Mitchell not to have declined. He did so in the following manner at paragraph 2:

"In my opinion it was totally improper to appoint Mr. Mitchell, and having been so appointed, Mr. Mitchell should have declined. Mr. Mitchell had made certain findings without hearing all of the evidence and made certain rulings detrimental to Mr. Jensen and Spur Aviation. I made it clear to Mr. Mitchell that I did not agree with his rulings or his findings, and therefore it was improper for Mr. Mitchell to take part in any other hearings in relation to either Spur, Great Bear or Mr. Jensen."

Again, this letter refers to the Spur hearing. Surely the allegation that the hearing officer made certain findings without hearing all of the evidence should have been a ground of appeal in that hearing. We are to address the grounds of appeal arising in the Jensen hearing. The last sentence of Mr. Bassie's letter is worthy of note. The reason that it was improper to appoint Mr. Mitchell, says Mr. Bassie, is because he Mr. Bassie did not agree with Mr. Mitchell's rulings or findings.

Mr. Bassie did not cite any legal foundation for his bold assertion. We seriously doubt that one exists. If Mr. Bassie's proposition is taken as correct, any litigant would have the right to ban a hearing officer from any further participation merely because one disagrees with his findings and facts. We cannot concur with that proposition.

Our attention was also drawn to the letter of July 30, 1997 from the Registrar to Mr. Jensen. The letter was in answer to Mr. Jensen's further and continued request that Mr. Mitchell be removed. In the August 15, 1997 letter, Mr. Jensen quotes from a letter that had previously been sent to the Tribunal on July 29, 1997. Mr. Jensen's letter states in part:

"I therefore make a formal request that Mitchell be removed not only as a Hearing Officer for Robert Jensen's Tribunal but also as Acting Member on any Tribunal. Mitchell is incapable of recording proper documentation, is totally biased, does not act fairly as a mediator."

To this the Registrar replied on July 30, 1997, in the following manner:

"Your objection to Mr. Mitchell as Hearing Officer at this Review was ruled on by Mr. Mitchell on June 12, 1997. A subsequent telephone conversation on June 18, 1997 in response to your letter of June 17, 1997 advised that the Civil Aviation Tribunal has no further jurisdiction to deal with this matter once a motion has been ruled on.

"Accordingly, the Review Hearing will proceed as scheduled on August 25 & 26, 1997 with Mr. Gordon Mitchell as Hearing Officer."

Mr. Holder argues that the tone and substance of that letter indicate bias. The other grounds, all in some fashion, assert bias/prejudice of Mr. Mitchell. Mr. Holder has broadened the bias to include the Registrar. By definition, bias can be anything which tends or is seen as tending to cause someone acting in a judicial capacity to decide a case on another basis than the evidence. The Registrar does not act in a quasi-judicial capacity, nor does she partake in the decision making process. Further, in our view, the Registrar's letter correctly states Tribunal practice wherein the member seized of the case rules on motions and matters regarding that case. Therefore the letter cannot have the effect that Mr. Holder contends.

On ground three, it was also argued Mr. Mitchell could not sit in judgement of himself regarding his own bias. We do not agree with that contention. No authority for it was cited but contrary authority exists.

Blake's text addresses the issue where it states²:

"When an allegation of bias is made, the tribunal may rule on the allegation. If it rules that it is not biased, it may continue with the proceeding. It is not obliged to halt the proceeding. A tribunal is not to be paralysed every time someone alleges bias."

The case cited for this proposition states it in emphatic terms Flamborough (Township) v. Canada (National Energy Board)³ (1984), 55 N.R. 95 at 104 (F.C.A.), leave to appeal to S.C.C. refused (1984), 58 N.R. 79 (S.C.C).

After addressing other issues in the case Mahoney J. stated for the Federal Court of Appeal:

"I should have added that the proposition that a member of a tribunal against whom an allegation of an apprehension of bias has been made cannot, himself, dispose of or participate in disposing of that allegation is utterly fatuous. The practical effect, if that were the law, would be the paralysis of tribunals, and trial courts, at the whim of anyone willing to allege bias. The availability of judicial review and appeal ensures that such charges will, ultimately, be dealt with by a disinterested judiciary."

On the basis of the foregoing discussion we must conclude that grounds two and three are not sustainable.

Ground four is an amalgam of past, future and present. Although previously produced, it is worth repeating here:

"Mr. Mitchell did not conduct the first hearing in accordance with the principle of natural justice and certainly would not, and as obvious, did not conduct this hearing in accordance with the principle of natural justice;"

The first hearing alleged not to have been conducted in accordance with the principle of natural justice was the Spur hearing. Any complaint in that regard, would have been the purview of an appeal of the Spur hearing. Mr. Jensen made no such appeal, and we have no jurisdiction to address it now.

Mr. Holder provided oral argument to supplement ground four. He argued that, in the alternative, the hearing was not conducted in accord with natural justice as there was a likelihood of a reasonable apprehension of bias. This is so given all of the circumstances of the case. He argued the fact pattern of the case gave rise to this apprehension.

In support of the proposition, he citesPPG Industries Canada Ltd. v. Attorney General⁴. We did not find that case instructive for the purposes Mr. Holder proposed. However, another Supreme Court case is often cited as the standard formulation for the test for the reasonable apprehension of bias.

In Committee for Justice and Liberty v. Canada (National Energy Board) (68 D.L.R. (3d) 716 at p. 735 Justice Laskin stated:

"... the apprehension [of a breach] (...) must be reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is 'what would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude"

The issue on this ground then is whether an informed person, viewing the matter realistically and practically, having thought the matter through would conclude that there was a reasonable apprehension of bias.

The apprehension must be of bias. It is critical to understand what that means. The Carswell Dictionary of Canadian Law defines it as:

"Bias 1. Prejudice 2. Anything which tends or is seen as tending to cause someone acting in a judicial capacity to decide a case on another basis than the evidence."

It is a given that Mr. Mitchell was acting in a quasi-judicial capacity, but Mr. Holder did not state why an informed person viewing the matter realistically would conclude that Mr. Mitchell would decide the case on another basis than the evidence. He did say that all the circumstances of the case showed and the fact pattern of the case gave rise to that apprehension. However, the other grounds of appeal that address the circumstances of the case and all arguments were directed to actual bias.

We do not conceive that an informed person viewing the matter realistically and practically would conclude that Mr. Mitchell would decide the case in favour of one side on a basis other than the evidence. We do however think that an informed person viewing the matter realistically and practically might think that Mr. Mitchell might decide the issue in the same way.

That result was addressed in British Columbia Court of Appeal case: Bennett v. British Colombia (Superintendent of Brokers)⁵. In that case one person of a three-member panel of the British Columbia Securities Commission was disqualified by the Court of Appeal on the ground of bias. The remaining two members of the original panel then sat on a four-member panel convened to resume the hearing.

On resumption of the Securities hearing, the Applicants asked that the two original members be disqualified on the ground that they would be biased by reason of having participated in deciding preliminary applications which were unsuccessfully made by the Applicants to the original panel. The Applicants wished to resume the application before the new panel. The panel rejected the application to disqualify the two members. The Applicants made an application under the Securities Act. S B C 1985 c 83 to the Court of Appeal of British Columbia for leave to appeal the refusal of the panel to disqualify two of its members.

That application was dismissed. We have found the reasoning for the dismissal instructive and quote parts of it here. Taylor J.A. in addressing bias states at p288-289:

"An allegation of bias is a serious charge against those who have accepted the obligations of independence and impartiality which go with judicial or quasi-judicial office, as have the members of this commission. To charge such persons with bias is not merely to say that they would be likely to decide a particular matter in a particular way, but to say that they would do so improperly. The charge implies that the quasi-judicial decision-maker would not decide the case independently, and on the basis of the evidence, but would do so under improper influence, and with a view to achieving an extraneous or otherwise improper purpose.

"As is demonstrated by the previous decision of this court, the law does not, of course, require actual proof of bias in order that a person be disqualified from exercising a judicial or quasi-judicial function in a particular case - it is enough that a reasonable and properly informed person in the position of the litigant would reasonably apprehend bias. The law will readily find this to be so where the decision-maker has a financial stake in the outcome of the litigation or is related or connected in some way to one of the parties. So too - and I think this the rationale of the earlier decision of this court - where the decision-maker holds another office imposing a duty which might be served by rendering a decision one way or the other in the proceeding. The consideration which prevails in such cases is that captured by the familiar dictum of Lord Hewart in R. v. Sussex Justices, Exparte McCarthy (1923), [1924] 1 K.B. 256 (D.C.) (at p. 259), of which we are so often reminded on these occasions, that "justice should not only be done, but should manifestly and undoubtedly be seen to be done.

"But here no personal or pecuniary interest, nor any reasonable apprehension of either, is alleged against the two commissioners. Nor, of course, are they said to be related with any interested party, or subject to any possible conflict of duty. It is said that because they have already decided certain preliminary matters adversely to the Applicants it is reasonably to be apprehended that they will decide those matters again in the same way when raised again at the present hearings."

Further, he states at p. 290:

"Other things apart, it is, of course, reasonable to apprehend that a decision-maker presented for a second time with the same question on the same evidence and argument will be likely to decide that question in the same way.

"But does this have anything to do with bias?

"The answer surely must be that if the decision-maker has decided the matter properly in the first place, that is to say free from extraneous or other improper influence - and in light of the previous decision of this court there can now be no suggestion here to the contrary - the fact that the second decision turns out to be the same as the first will show no more than that the decision-maker continues to take the same view as before of the law and evidence. That surely has nothing to do with bias. There may well be an apprehension of consistency of judgement when the same matter is raised for the second time before a judicial or quasi-judicial decision-maker, and the party against whose interest the first decision went will understandably prefer for that reason that the matter be considered the second time by someone else, but surely it is impossible that a reasonable apprehension of consistency in judgment on the part of a decision-maker in dealing with the same matter a second time can be equated with reasonable apprehension of bias. The first is an apprehension that the decision-maker will again see the law and evidence in the same way as on a previous occasion; the second is an apprehension that the decision-maker will ignore law or evidence and decide instead on the basis of extrinsic and improper considerations."

Taylor A.J. does provide a caveat where he states at p. 292:

"Where, moreover, a decision-maker has made findings as to the good faith of a party, or has expressed any other view which might make it difficult thereafter to accept that party as an honest person or a credible witness, the former may be disqualified from sitting to decide a matter involving the same party. The same may be true where there has been conduct on the part of the decision-maker in a proceeding involving the same litigant which would impair confidence on the part of a reasonable litigant in the decision-maker's ability properly to decide the issues. In these cases a decision-maker may be disqualified from hearing a matter on the basis of previous involvement, even through the proceedings in question are not in the nature of an appeal, nor is there any basis for apprehending anything which could be described as bias."

As in the Bennett case, there is no personal or pecuniary interest alleged, nor any reasonable apprehension of either. Mr. Mitchell is not said to be related with any interested party or subject to any possible conflict of duty. It is said that because Mr. Mitchell had already decided a matter adversely to Mr. Jensen, it is reasonable to be apprehended that he would decide the matter again in the same way when raised at the next hearing. This is amply illustrated by ground three which states in part: "Mr. Mitchell had already decided against Mr. Jensen on similar evidence."

But does this have anything to do with bias? We think not. We adopt the reasoning of Taylor A.J. in saying that there may be an apprehension of consistency of judgement when the same matters are raised for the second time before the same decision-maker, but, if the matter was properly decided in the first instance, free from extraneous or other improper influence it will only indicate that the decision-maker continues to take the same view of the law and evidence. As to the propriety of the first decision (Spur), it was not appealed and thus no issues of extraneous or improper influence were raised.

As to the caveat raised by Taylor A.J. we note that Mr. Mitchell did not express the view that he would have difficulty accepting the Appellant as an honest or credible witness when he wrote his letter refusing to recuse himself.

Upon considering the foregoing analysis, we cannot agree with Mr. Holder's argument that a reasonable apprehension of bias was raised, therefore we reject ground four of the appeal.

Ground five, is not a ground of appeal, but rather is the remedy sought and therefore need not be discussed at this point.

Mr. Holder did not specifically address further grounds appearing from the transcript at ground six, but included issues such as the reasonable apprehension of bias in the argument of his other grounds, thus there is no issue to be decided on ground six.

We have addressed each of the grounds of appeal raised by the Appellant and considered his counsel's arguments on all points. The record of the proceedings of the member at first instance does not reveal the legal frailties raised in the grounds of appeal.

DETERMINATION

The appeal panel therefore finds that there are no grounds for allowing the appeal and that the member's ruling of the first instance is to be upheld and the Appellant's AME licence cancelled.

¹ Sara Blake, Administrative Law in Canada, 2d ed., (Toronto and Vancouver: Butterworths, 1997) at 90.

² Blake, supra at 96.

³ Federal Court of Appeal judgment dated June 15, 1984.

⁴ 65 DLR (3rd) at 354.

⁵ 30 ALR (2nd) at 283.

Date modified:

2010-03-31

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