AIR LAW |
Boyd v. Canada (Minister of Transport)
T-623-03
2004 FC 263, Phelan J.
3/3/04
9 pp.
Judicial review involving interpretation and application of Canadian Aviation Regulations (CAR)--Whether applicant charged under applicable provisions of CAR and punished correctly--On August 26, 2001, weather deteriorated such as to cause cancellation of flying competition--Applicant held personal special flight operations certificate (SFOC) which authorized him to perform low-level aerobatics in accordance with conditions stated in SFOC--Applicant, apparently satisfied with weather conditions took off and performed low-level aerobatics--However other pilots either questioned his judgment or considered him reckless--Contest director reported incident to Transport Canada--Applicant charged under Aeronautics Act, s. 6.9 with contravention of CAR, ss. 602.01 and 602.27(c)--Accordingly, Transport Canada suspended applicant's Airline Transport Pilot Licence (ATPL), cancelled SFOC--Single member of Civil Aviation Tribunal (CAT) quashing suspension, cancellation--On appeal, three-member panel of CAT held no double jeopardy because cancellation of SFOC safety matter while suspension of ATPL punitive--However, conclusion cannot stand, because same act of flying over assembly of persons nexus between suspension, cancellation--SFOC cancelled because Transport Canada alleged applicant had breached condition of SFOC in past, not because of any threat to safety in future--Suspension of ATPL also based on past contravention for same activity--Therefore, CAT erred in respect of issue of double jeopardy--True nature of enforcement action, real purpose and intent examined--CAT found applicant in breach on different basis than Transport Canada--Not role of CAT to substitute its view of what allegations should have been-- CAT assumed role of prosecutor and judge--At bare minimum, applicant entitled to be notified of new basis for allegations and to have been afforded opportunity to defend against those allegations--Simple issue of fairness and natural justice--Concept of notice and opportunity to be heard on issue so fundamental to public law as to admit of no debate-- Applicant provided with neither--Application allowed-- Canadian Aviation Regulations, SOR/96-433, ss. 602.01, 602.27(c)--Aeronautics Act, R.S.C., 1985, c. A-3, s. 6.9 (as enacted by R.S.C., 1985 (1st Supp.), c. 33, s. 1; S.C. 2001, c. 29, ss. 35, 45).