SKY REGIONAL AIRLINES INC. Applicant v. GRIGORIOS TRIGONAKIS, 2021 FC 513

Date: 20220202 Docket: T-616-20 Citation: 2021 FC 513 Ottawa, Ontario, February 2, 2022 PRESENT: Mr. Justice Annis BETWEEN: SKY REGIONAL AIRLINES INC. Applicant and GRIGORIOS TRIGONAKIS Respondent AMENDED JUDGMENT AND REASONS I.

Introduction [ 1 ] The Applicant seeks judicial review of an award ( " “Award” " ) dated May 12, 2020, in which the Adjudicator appointed under the Canada Labour Code , RSC 1985, c L-2 [ Code ] held that the dismissal of the Respondent was unjust and awarded compensation for his loss . [ 2 ] The Applicant requests that the Court set aside the Award, uphold the dismissal and require the Respondent to repay the Applicant all funds that were received pursuant to the Award.

Alternatively, that this matter be remitted to a new adjudicator. [ 3 ] For the following reasons, this Court grants this application for judicial review and remits the matter to a new adjudicator with directions. [ 4 ] The Applicant, Sky Regional Airlines Inc. ( " “SRA” " ), is a Canadian airline that holds an Air Operator Certificate issued by the Minister of Transport, that permits it to operate aircraft in accordance with the Aeronautics Act , RSC 1985, c A-2 and the Canadian Aviation Regulations , SOR/96-433 [ CARs ]. [ 5 ] The Respondent is a commercial pilot whom the Applicant airline removed from duty due to its concerns about his fitness to properly perform his duties.

The Respondent commenced his employment as a First Officer in November 2010. He became a Captain in March 2014 and held that position until termination of employment on July 6, 2017. Prior to this employment, the Respondent worked for fourteen years as a professional engineer. II. Facts A. The Parties B. The Initial Decision to Remove the Respondent From Active Duty [ 6 ] On February 18, 2017, an anonymous report was filed by Person A under the Applicant’s Safety Management System ( " “SMS” " ) regarding the Respondent’s behavioural conduct and attitude that caused discomfort.

In particular, the report attests to a deterrence to denounce his conduct on previous occasions given past hostile reactions, and the need for the current report, as the attitude displayed in the cockpit " “could easily lead to an incident/accident.” " [ 7 ] As a result, a meeting was convened on March 1, 2017 between the Senior Director of Flight Operations, Mr. Foster, and the following individuals: Mr. Card, Manager of Training at the time; Mr. Chubbs, Director of Training and Standards at the time; Mr. Sattler, Chief Pilot at the time; Mr. Ward, Director of SMS and Corporate Quality; and Ms.

Zamat, Vice President Legal and Administration. A joint decision was made then, though without the then Chief Pilot Mr. Sattler due to unrelated circumstances, whereby the Respondent would be removed from active duty, pending an investigation. Mr. Turner, CEO and President, was also consulted and agreed with the decision. [ 8 ] Mr. Foster testified that the decision was informed from the understanding that an airline is prohibited from allowing a person to fly an aircraft if it has " “any reason to believe” " that a pilot is unfit to properly perform their duties.

In addition to reviewing the February 2017 SMS report, consideration was given to an email dated November 2015, brought forward by Mr. Chubbs on March 1 st , describing similar concerns to those raised by Person A. In the email, an experienced pilot, Mr. Carbonneau, stated that he had not experienced such behaviour as exhibited by the Respondent in more than 25 years of training pilots and that this represented a safety issue. [ 9 ] The Respondent was informed of the decision by telephone by his direct supervisor Mr. Sattler .

[ 10 ] On March 3 rd , Mr. Ward and the Safety Officer, Mr. Hebb, conducted an interview with the Respondent regarding the SMS report, a redacted version of which was provided to him. There is no indication that Mr. Carbonneau’s email was raised at such time with the Respondent. Though no violation of the airline’s Standard Operating Procedures was found, and the investigators would recommend the Respondent return to his duties, concerns of aggressiveness arose during the process and were communicated to Mr.

Foster, who then gave instructions to continue the investigation. [ 11 ] The following day, two additional SMS reports were brought to Mr. Foster’s attention with similar concerns from July and October 2016 (respectively by Person B and Person C), reporting unsettling bursts of aggression and use of threatening and coarse language in the cockpit giving rise to safety concerns. Mr. Foster also received a call from the Respondent on March 4 th , wherein Mr.

Foster reported that the Respondent’s demeanour was threatening, and that he was characterizing the investigation as a conspiracy. [ 12 ] Three days later, on March 7 th , the Respondent used the corporate email account to send an email to all approximately 800 employees of SRA regarding the ongoing investigation. He stated that the investigation was without just cause, was " “like a modern day witch hunt” " , " “remorseless and drastic” " , with " “clearly an inten[t] behind the actions” " against him, adding " “‘today it’s me, tomorrow it may be you’” " .

He sought forgiveness from those who had wronged him for his doing being the right thing, referring to Mr. Sattler, despite " “his wrongdoing … years ago” " . He further stated that he was standing up against " “men of corrupt minds and destitute of truth” " , only trying as a Christian " “to raise my children with the same values and beliefs” " . The email also speculates whether these actions would happen with a union, and further solicits feedback from the recipients " “sending me what they felt [were] good things in my character” " . [ 13 ] On March 15, 2017, additional information was brought forward to Mr.

Foster from another First Officer (Person D). The pilot stated among others things that the Respondent " “becomes easily agitated and often resorts to anger, sarcasm and creates an extremely tense environment in the flight deck” " and that it " “can be extremely dangerous in a flight environment, let alone, an emergency situation.” " The individual also noted that " “[h]e has an incredibly difficult time understanding that his personality may be the source of his problems at the company. He does not take constructive criticism from coworkers properly.

He takes it personal[ly] and becomes determined to prove everyone wrong.” " [ 14 ] Following the above, on March 16 th Ms. Zamat sought the advice of the airline’s external physician, Dr. Knipping, a Civil Aviation Medical Examiner ( " “CAME” " ). Her email textually included the Respondent’s company wide email of March 7, and the contents of the email from Person D of March 15, 2017. [ 15 ] As a result of Ms. Zamat’s email, Dr. Knipping recommended that the Respondent undergo an independent medical examination, described as an Aviation Medical Consultation ( " “AMC” " ).

He also recommended that SRA obtain an independent opinion from a psychologist rather than himself because " “it is clear to me that this case is likely to end in litigation” " . Dr. Knipping further indicated that it was important that they identify the psychologist to ensure that the concerns raised by the crew and airline would be clearly addressed and not dismissed if the Respondent were to retain a psychologist of his choosing.

He also indicated that it would not be possible to withhold or conceal the critical information provided to him, that the psychologist would need for the AMC. [ 16 ] On March 17, 2017, Ms. Zamat and Mr. Chubbs met with the Respondent to discuss safety issues raised by his colleagues. The Respondent came with a binder of materials intended to respond to safety issues, which SRA refused to discuss. Later that day, the Respondent followed up in an email indicating his desire to return to flying duties, and for Ms. Zamat to specify in writing what was expected of him to do so. [ 17 ] On March 20 th , Ms.

Zamat couriered a " “without prejudice” " letter to the Respondent, indicating that an appointment with Dr. Knipping had been made for March 23 rd and that he was to sign the attached consent form and return it for that purpose. The letter indicated that: C. The Decision to Continue the Investigation D. The Additional Concerns from the Continued Investigation E.

The Applicant’s Efforts to Verify the Respondent’s Fitness Since your personality and conduct is the focus of these safety concerns , we are obliged to request that you see a physician selected by Sky Regional to perform an Aviation Medical Consultation at our cost and to follow through with any additional referrals or assessments deemed necessary by the physician. … If you refused to participate in this assessment, or do not cooperate with the physician or any specialist or additional testing required we will be obliged to report this matter to Civil Aviation Medicine, Transport Canada, under

Section 6.5 of the Aeronautics Act . [Emphasis added.] [ 18 ] The Respondent replied to Ms. Zamat’s letter on March 21, 2017 indicating that he was prepared to cooperate with further investigation, but pointed out among other criticisms, that there was nothing in his employer file prior to the SMS report of Person A indicating a problem with his behaviour, and further that:

The ‘number of colleagues’ that you refer to is unclear as to how many or who is behind the additional safety issues. Have there been other SMS reports? Which flights are these safety issues being brought forward about and why now? Have these ‘colleagues’ been interviewed and, if so, by whom? Is it a group of employees colluding with the chief pilot with false and vexatious claims about my personality and conduct? [ 19 ] There was no reply to this letter. The Respondent then refused to show up without notification for the AMC scheduled for March 23, 2017, and a further AMC scheduled for March 30, 2017.

As a result, Dr. Knipping emailed Ms. Zamat indicating that the allegations raise the possibility that the Respondent may have a personality disorder or other unknown medical, social or substance disorder that is interfering with flight operations, which requires further investigation in a timely manner. He further indicated that because of the Respondent’s refusal to cooperate, he was obliged to report the Respondent to Civil Aviation Medicine under

section 6.5 of the Aeronautics Act , and requested any further information in respect of that requirement. [ 20 ] On March 27, 2017, in reply to emails from the Respondent, Ms. Zamat reiterated SRA’s right to choose the CAME. [ 21 ] On March 30 th , Ms. Zamat gave notice of an intention to place the Respondent on leave without pay due to his " “insubordination” " , and that his continuous lack of cooperation could " “result in disciplinary action up to and including termination with cause.” " [ 22 ] On April 11, 2017, the day before another scheduled meeting, the Respondent sent an email to Mr.

Card with an enclosed brief medical note, dated April 10 th , containing no indication of the information relied upon, indicating that he met with Dr. Boulanger, who had been his CAME since 2010, who cleared him medically fit to fly. Dr. Boulanger was not provided any of the information relied upon by SRA to require him to attend an AMC.

The medical note was, therefore found to be insufficient on its own to establish that flight safety would not be compromised. [ 23 ] Subsequently, the Respondent was informed on April 12, 2017 that due to his inappropriate use of company email on March 7 th , and his continued refusal to cooperate with the request for additional medical information, he was being suspended without pay until April 26, 2017.

The Applicant ultimately did not cut off pay and benefits during the suspension. [ 24 ] On April 17, 2017, the Respondent replied in a long email chastising the Applicant for its conduct, which included the following statement regarding SRA’s failure to provide information to him, referring to Ms. Zamat letter of March 20, 2017, as follows: At no time did you provide any specific safety issues or concerns and actually confirmed with me on March 17 th , 2017, that with the exception of the First Officer O.

Lambert Occurrence Report there are no other Occurrence Reports and nothing in my employee file: no accidents, no incidents, no occurrences and no previous reports or letters indicating a problem with my personality and conduct. However, for the safety issues you claim to exist, you indicated in the same letter a request for me to see a Civil Aviation Medical Examiner that you have selected in order to conduct an Aviation Medical Consultation. [ 25 ] On April 27, 2017, Ms. Zamat wrote to the Respondent requesting again for his cooperation and his attendance at an appointment with Dr. Knipping.

The Respondent refused to do so, and instead offered that Ms. Zamat communicate with his doctor, Dr. Boulanger, with respect to any further request regarding his mental health. The Respondent’s May 4, 2017 correspondence also stipulated that if a second opinion was necessary, a third party could be selected to conduct the evaluation. [ 26 ] Ms. Zamat then proposed, by email on May 18 th , that the parties’ respective doctors consult each other to decide on a suitable third party. The following day, the Respondent replied in the negative. [ 27 ] On May 31, 2017, Ms.

Zamat responded with a letter explaining that she would not deal directly with his doctor, as she was not a physician, or in a position to discuss medical issues with Dr. Boulanger. The letter also stipulated another compromise wherein the airline’s physician would consult Dr. Boulanger to discuss the medical note, and should they be satisfied on fitness for duty based on any additional information Dr. Boulanger could provide, no assessment would be necessary, and the Respondent would effectively return to work. [ 28 ] The Respondent rejected this last proposal and continued to insist that Ms.

Zamat communicate with his doctor about his medical fitness. Ms. Zamat responded on June 12, 2017 again asking for the Respondent’s cooperation to consent solely to a doctor-to-doctor consultation. Further, due to continued refusal to cooperate, the Respondent was placed on an unpaid leave of absence effective June 21 st . The Applicant additionally indicated that the Respondent has not been terminated, contrary to the Respondent’s position. The foregoing was objected to by the Respondent on June 17, 2017.

On June 21, 2017, the Respondent was offered a final opportunity to comply by June 29 th . [ 29 ] When the Respondent declined to respond, the Applicant sent him a letter of dismissal, dated July 6, 2017, stating that having requested his cooperation for over four months, without his having shown a willingness to comply with the requests for information, his employment was terminated effective immediately. [ 30 ] The dismissal was then contested before an adjudicator under the Code and was found to be unjust. [ 31 ] In its deliberation, the Adjudicator found that the Applicant did not have reasonable grounds to question the Respondent’s fitness for duty, nor the right to remove him from service. [ 32 ] The Adjudicator concluded that the SMS report of Person A was " “about some flying procedures and a bad attitude towards him” " and did not show " “a serious cause and an imminent danger that necessitates an immediate corrective action.” " [ 33 ] Further, given the result of the meeting with the investigators, there were no reasonable grounds to question the Respondent’s

fitness or flight safety, and there was no obvious reason to keep him off duty. He described the decision of Mr.

Foster to be arbitrary and unfounded, and as with the initial decision to remove him from service, to be intended to punish the Respondent. [ 34 ] The Adjudicator then found that the request to attend an AMC with a CAME was unreasonable and further found that the Respondent was denied his legal rights by the Applicant continuing " “to maintain that the ultimate decision belonged to their chosen doctor without first exploring a less intrusive option” " . [ 35 ] He found that the requirement for a medical examination is a " “drastic measure” " and it should only have been required in " “exceptional and clear circumstances” " for a doctor chosen by the employer exclusively to conduct the examination.

The Adjudicator alluded to the Respondent’s initial removal from duty, the absence of concern for fitness for duty, the medical note provided by the Respondent finding he was fit to fly, and his removal based on allegations, speculations, hearsay and rumours.

He concluded that there was no necessity to force him to meet the doctor chosen by the company, who the Respondent did not trust based on information that the doctor was a good friend of an unnamed company executive. [ 36 ] The decision to terminate the employment for lack of cooperation in the efforts to verify fitness for duty was then found to be unjust and unfair.

The Adjudicator found it was unacceptable in the circumstances that the non-punitive SMS became the fact at the origin of the dismissal. [ 37 ] Furthermore, the Adjudicator did not see a refusal to cooperate by the Respondent, participating in the investigation with Mr. Ward, travelling to meet Ms. Zamat and others on March 17, 2017 and providing his own medical assessment of fitness.

This consideration included the Respondent’s inability to cooperate due to the employer maintaining him intentionally in the dark by refusing to provide details like names, incidents, phone numbers, dates, copy of reports and reasons for being kept out of service, which prevented him from giving his side of the story to refute the allegations and prove the absence of safety concerns. [ 38 ] The Adjudicator concluded at paragraph 191: III.

Contested Decision After hearing and observing most witnesses of the employer repeating the same conclusion, following many vague and unsubstantiated allegations, and after considering that the Complainant was never provided with a full opportunity to explain or to refute these allegations due to the said confidentiality of the SMS system , I believe that many decisions or gestures of the employer were self-serving, camouflages, exaggerations and abuse. [Emphasis added.] [ 39 ] Therefore, the claim that the Respondent is unfit for duty and that the Applicant is prohibited from allowing him to perform his duties, due to one SMS report, was found not supported by evidence and not credible in the circumstances.

It was then not acceptable to dismiss the Respondent, when the Applicant did not prove that it had serious cause to justify this decision. [ 40 ] The Adjudicator thus concluded that the dismissal of the Respondent was unjust and the complaint filed under the Code was allowed. [ 41 ] The Adjudicator subsequently determined that reinstatement was not an appropriate remedy in the circumstances, given several findings of fact regarding the Respondent’s conduct during the hearing and his employment, demonstrating that continued employment is not viable. [ 42 ] In considering granting an award, the Adjudicator found that the Applicant failed to prove that the Respondent could have found replacement work if he would have made more effort in his search.

Further, the Adjudicator was satisfied with the Respondent’s reasonable efforts to mitigate the losses.

The Respondent, therefore, had the right to be compensated for loss of earnings, including all fringe benefits, during the relevant period of July 2017 until the day of the decision. [ 43 ] The Adjudicator also believed that the Respondent is entitled to receive compensation in lieu of reinstatement or loss of future earnings based on the concept of reasonable notice period, which was calculated at twelve months of salary. [ 44 ] Moreover, the Adjudicator found that the Applicant did not show good faith in the manner in which the employment was terminated, and according to the precedents on the subject, the amount of $10,000 for moral damages was awarded.

The Adjudicator notably considered the Respondent’s feeling of being punished, stressed, humiliated and isolated. The Adjudicator also remarked that the conduct of the employer was malicious and so outrageous that they deserved punishment. [ 45 ] In addition, the Respondent was entitled to interest on the amount of the compensation, for loss of earnings, because he was kept without income for a long period of time.

The Applicant was also ordered to pay costs of preparation and disbursements related to the hearing, plus expenses related to the recovery of the Respondent’s pilot qualification. [ 46 ] The Applicant argues that the issues are as follows: IV. Questions in Issue 1) What is the applicable standard of review? 2) Was there a violation of the Applicant’s right to procedural fairness and natural justice by the apprehension of bias of the Adjudicator?

3) Is the Award unreasonable? [ 47 ] The Respondent does not submit any issues, but articulated the

summary of its submissions with respect to the dismissal of the Respondent at paragraphs 74 and 75 of its memorandum, as follows, with the Court’s emphasis: 74. With respect to applicant’s decision to suspend and subsequently terminate respondent, it is evident that the case at bar is not about respondent’s alleged failure to cooperate and/or alleged insubordination, but rather whether or not the circumstances are such that the employer had serious cause to remove respondent from flight duty and subsequently fire him, considering the expert opinion to the contrary . 75.

The evidence demonstrates that the Adjudicator’s conclusions were based on the evidence that was actually before it.

It was also clear from the proof that respondent was never provided with a full opportunity to explain or to refute these allegations, due to said confidentiality of the SMS systems and that many decisions or gestures of applicant were self- serving, hidden, camouflages, exaggerations and abusive (see paragraph 191 of the Decision). [ 48 ] The Court concludes that the issues for consideration are those presented by the Applicant, in addition to the highlighted fairness passage in paragraph 75 above. [ 49 ] In accordance with the recent decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 [ Vavilov ], the framework to determine the standard of review is based on the presumption that an impugned decision is reasonable ( ibid at para 16). [ 50 ] The focus of reasonableness review must be on the decision actually made by the decision-maker concerning both the reasoning process and the outcome.

The Court should intervene only when it is truly necessary to do so ( ibid at paras 17, 84–86). The reviewing court must determine whether the decision " “is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker” " ( ibid at paras 85, 99ff). A reasonable decision is justified in light of the particular legal and factual constraints that bear on the decision — " “it is not enough for the outcome of a decision to be … justifiable[,] the decision must also be justified” " ( ibid at paras 85–86).

The reviewing court must determine whether the decision " “bears the hallmarks of reasonableness — justification, transparency and intelligibility” " ( ibid at para 99). Finally, the onus is on the party who contests the decision to demonstrate that it is not reasonable ( ibid at para 100). [ 51 ] Where a reviewing court conducts reasonableness review for a question of statutory

interpretation, the court " “does not undertake a de novo analysis of the question or ask itself what the correct decision would have been” " ( ibid at para 116). The reviewing court simply ensures that the administrative decision-maker has interpreted the contested provision in a manner consistent with the text, context and purpose, that is, in line with the modern principles of statutory

interpretation ( ibid at para 121). [ 52 ] Further, the reviewing court should be concerned with the general consistency of administrative decisions. As the Supreme Court of Canada cautioned in Vavilov , at para 129 : V. The Standard of Review Those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision-maker — expectations that do not evaporate simply because the parties are not before a judge. VI. Analysis A. The Regulatory and Contractual Scheme to Ensure Pilots’ Fitness to Fly [ 53 ] Although barely mentioned in the reasons, CARs , s 602.02 and

section 19 of the TOE apply together to provide airlines with the authority and procedure to determine whether pilots are fit to discharge their duties and to remove them from service on a non- disciplinary basis, if unfit to fly. The relevant provisions are set out as follows, with the Court’s emphasis: CARs Règlement de l’aviation canadien, DORS/96-433

602.02 No operator of an aircraft shall require any person to act as a flight crew member and no person shall act as a flight crew member, if either the person or the operator has any reason to believe , having regard to the circumstances of the particular flight to be undertaken, that the person (

a) is suffering or is likely to suffer from fatigue; or (

b) is otherwise unfit to perform properly the person’s duties as a flight crew member. 602.02 Il est interdit à l’utilisateur d’un aéronef d’enjoindre à une personne d’agir en qualité de membre d’équipage de conduite et à toute personne d’agir en cette qualité, si l’utilisateur ou la personne a des raisons de croire , compte tenu des circonstances du vol à entreprendre, que la personne est :

a) fatiguée ou sera probablement fatiguée;

b) de quelque autre manière inapte à exercer correctement ses fonctions de membre d’équipage de conduite. TOE, March 1, 2017 Pilots shall be responsible for ensuring the renewal of their licenses by undergoing medical examinations as per the timeframes established and required for that purpose by Transport Canada. Only physicians appointed by Transport Canada may carry out the examinations. The choice of physician is left to the discretion of the Pilot. The Company may not request or have access to the results of the examinations without the written consent of the pilot.

Should the Company have reason to believe that a Pilot is unfit to carry out his duties for health or physical reasons ; the Company may ask him to undergo a medical examination by a certified Civil Aviation Medical Examiner (CAME). Pending the receipt of the results of the medical examination, the Pilot shall be held out of service with pay and benefits.

The Pilot shall receive a copy of the medical report . [AMC referral provision.] Any Pilot required by the Company to undergo a medical examination in accordance with the above shall be notified in writing as to the reasons for the requirement. [AMC notification provision.] Should the results indicate the Pilot is medically fit to return to duty, the Pilot shall be returned to active duty.

Should the physician deem that the Pilot is not medically fit to return to work, the Pilot shall apply for the Company’s Short-Term Disability benefits. [ 54 ] The AMC referral provision of the TOE serves the purpose of implementing CARs , s 602.02 in medically-related situations, where there are concerns whether a pilot is " “otherwise unfit to perform properly the person’s duties as a flight crew member” " , by requiring the pilot to undergo an AMC by a CAME. [ 55 ] The Applicant submits that CARs , s 602.02 was sufficient to have the Respondent initially removed from service based on the SMS report of Person A.

Logically, the jurisdiction pursuant to CARs , s 602.02 would also extend to decisions to maintain the pilot out of service, pending an investigation, as well as the CAME’s determination that the pilot is unfit to fly. [ 56 ] Challenging these decisions to set them aside would appear therefore, to fall within the ambit of a judicial review proceeding, as they are the result of the exercise of federal legislation. Otherwise, the AMC referral and notification contractual provisions of

section 19 of the TOE govern the investigation and the referral of the pilot to a CAME for an AMC. [ 57 ] However, the Court concludes that upon the dismissal of the Respondent for insubordination , the Adjudicator is entitled to examine all of the decision-makers’ conduct with respect to their actions, including the apparent fairness of their decisions and issues of bad faith, if relevant to the wrongful dismissal complaint under the Code .

That has been his procedure in this matter. [ 58 ] In doing so, the Adjudicator must apply the appropriate statutory and contractual standards in arriving at conclusions regarding the legality of the employer’s conduct that are relevant to the wrongful dismissal claim. It is the failure by the Adjudicator to apply the appropriate regulatory and contractual standards based on " “just cause” " instead of " “a reason to believe” " that represents the core reasoning of the Court’s unreasonableness finding of his decision.

This reasoning however does not apply to questions of a duty of fairness. [ 59 ] While it is accepted that the Adjudicator has jurisdiction concerning the wrongful dismissal claim pursuant to

section 240 of the Code , the case is only indirectly about whether the employer had serious cause to remove the Respondent from service and subsequently dismiss him. The fact of insubordination is not in contention, as opposed to its grounds, which raises issues of fairness. [ 60 ] The fairness issue is ultimately narrowly focused on the evidence relating to SRA’s failure to provide the Respondent with the materials or the reasons that SRA relied on requiring him to undergo an AMC.

The Adjudicator lost focus on the fairness aspect to justify the referral, instead bearing down on the decision referring the Respondent to an AMC, and in particular applying a " “just cause” " test instead of the standard of " “a reason to believe” " test.

[ 61 ] He thereby wasted the fairness submission by attempting to demonstrate that the information relied upon by SRA was inadmissible or of insufficient probative value to sustain the Respondent’s referral to an AMC based on a just cause standard bolstered by findings of bad faith and conspiracy.

Instead, the applicable test was that of a " “reason to believe” " , which would be difficult to demonstrate, given the generous discretion that this standard provides. [ 62 ] The parties, or at least the Respondent and his lawyer, as well as the Adjudicator, failed to recognize a most obvious, and perhaps determinative, provision in the TOE, being the AMC notification provision.

It was only recognized by the Court after the hearing, when turning its mind to consider more carefully the legal parameters constraining the decision, although not raised in the written materials or oral submissions. [ 63 ] To repeat the relevant passage in the AMC notification provision, it is as follows with the Court’s emphasis: " “[a]ny Pilot required by the Company to undergo a medical examination in accordance with the above shall be notified in writing as to the reasons for the requirement.” " [ 64 ] The reference to " “the above” " is to the previous paragraph, being the AMC referral provision in

section 19. It authorizes the airline to require a pilot to undergo an AMC if having " “reason to believe” " that the pilot " “is unfit to carry out his duties for health or physical reasons reasons ” " [emphasis added]. The reasons for the requirement to attend an AMC would be the same as those that the Applicant was required to provide to the Respondent in writing. [ 65 ] In this regard, the Court notes that the term " “reason” " in both the CARs and the TOE refers to a " “ground” " or " “basis” " .

It is unnecessary to express reasonableness, as it is understood as an essential element of all good decision-making. In other words, the AMC referral provision essentially reads: reasonably have a reason or ground to believe unfitness. Similarly, therefore, the AMC notification provision implicitly means: reasonable reasons for the requirement to undergo the AMC. [ 66 ] The Court presumes that the Applicant breached the provision. The only evidence that could approach meeting the requirement in writing or otherwise is contained in Ms. Zamat’s email to the Respondent of March 20, 2017, cited above in the

summary of facts of this case.

She indicated that safety issues concerning his personality and conduct had been raised by a number of his colleagues that required he undergo an AMC. [ 67 ] As previously indicated, the Respondent spelled out in his email of April 17, 2017 that he had no information with respect to any issues or incidents apart from the SMS report of Person A, as to what those safety concerns were. [ 68 ] The Court points out that the " “reasons” " for the requirement to attend an AMC, would not entail providing the detailed evidence that the reasons are based on, or require the violation of the anonymity provisions in the SMS, authorized by CARs .

The reasons would require sufficient particulars of the substance and theory of what the airline considers are its meaningful reasons to believe that the Respondent must report to a CAME of its choice to undergo an AMC. [ 69 ] In this instance, based on the testimony of Mr. Foster, the reasons could have included a statement that SRA had a reason to believe that the Respondent was unfit to fly for the purpose of requiring an AMC based on a

summary of information, including hearsay statements, provided by his colleagues, but not necessarily validated. It would likely be sufficient to meet the threshold of a reason to believe if demonstrating a pattern of some duration of inappropriate aggressive behaviour by the Respondent in the cockpit by sufficient unverified statements from other flight crew members raising issues of safety. [ 70 ] It is also doubtful that the Respondent would be required to demonstrate that he might have undergone the AMC, had the reasons for the referral been provided.

This refers to the arbitral jurisprudence that there is " “just cause” " for dismissal if, in the circumstances, providing reasons would not have made any difference to the " “justness” " of the dismissal, i.e. he would have refused the referral for an AMC in any event. [ 71 ] This test does not appear to apply because the duty to provide reasons in the TOE is a contractual term that is a condition precedent to the employer’s authority to require the Respondent to submit to the AMC.

This distinction is made by the Federal Court of Appeal in Bell Canada v Hallé , [1989] FCJ No 555 [ Bell Canada ] when the Court refers to a procedure being a condition , as follows: B. A Conundrum for the Court To begin with, I would say that the respondent’s dismissal, assuming it to be otherwise justified, cannot be regarded as unjust solely because the applicant did not follow the dismissal procedure described in its internal directives to the letter.

So far as I am aware, this procedure is not a condition of the employment contracts of Bell Canada employees. [Emphasis added.] [ 72 ] In this case, the AMC notification provision is a condition in an employment contract that requires reasons to be provided in writing, in order to proceed to require a pilot to undergo an AMC. [ 73 ] This conclusion is further based upon three factors that the Court concludes inform the AMC referral provision: 1) Duty of fairness function, both in appearance and functionally in order to allow the Respondent to provide written responses to the reasons provided, with the view of convincing the airline to alter its position regarding being taken out of service; 2) Providing the Respondent with the grounds to make an informed decision whether to undergo the AMC in the face of risking dismissal for insubordination; and 3) Ensuring the CAME may make an informed decision based upon all of the possible relevant and unadulterated evidence coming from the pilot, not only in terms of the decision itself, but the procedure entailing posing relevant questions based upon the pilot’s

concerns and views. [74] There appears to be little scope for any argument that the Applicant’s bias submissions could affect a ruling that SRA had notcomplied with the contractual AMC notification provision. The factual issues regarding the failure to provide reasons do notappear to be in dispute, while the Adjudicator was apparently not aware of the provision. [75] The conundrum of sorts arises because it is usually considered inappropriate for the Court to consider an issue not raisedbefore the decision-maker for the first time on a judicial review.

This principle is compounded by the fact that it is the Court thathas raised the new issue. [76] The Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011SCC 61 at paras 22–26 [Alberta Teachers’ Association] established the ground rules in situations when a party raises a new issuein the judicial review application. [77] The Supreme Court stated that a judge has a discretion not to consider an issue raised for the first time on judicial reviewwhere it would be inappropriate to do so.

It indicated that generally, this discretion will not be exercised in favour of an applicanton judicial review where the issue could have been, but was not raised before the tribunal. [78] The Supreme Court described a threefold rationale underlying its disinclination to allow a new issue to be raised on thejudicial review as: (1) the legislature has entrusted the determination of the issue to the administrative tribunal; courts should respect thelegislative choice of the tribunal as the first instance decision-maker by giving the tribunal the opportunity to deal with theissue first and to make its views known; (2) this is particularly true where the issue raised for the first time on judicial review relates to the tribunal’s specializedfunctions or expertise, because when it does, the Court should be especially careful not to overlook the loss of the benefit ofthe tribunal’s views inherent in allowing the issue to be raised; and (3) raising an issue for the first time on judicial review may unfairly prejudice the opposing party, while denying the courtthe adequate evidentiary record required to consider the issue. [79] Because the Court concludes that the Adjudicator’s decision must be reconsidered by a different adjudicator, as beingunreasonable for several reasons and erroneously unfair, the three concerns weighing against permitting a new issue to be raised inthe judicial review described in Alberta Teachers’ Association do not arise.

The only purpose of raising the new fairness issue iswith respect to a direction that it be considered by the new adjudicator to whom this matter will be referred. [80] The Court also takes this unusual step in the interests of justice, and hopefully to assist in the more focused and rapid hearingthan the 17 days previously required. The Respondent was self-represented. The Adjudicator ought to have reviewed the TOE. Hefailed to mention it in the analytical portion of his reasons.

There are also concerns that the employer may have knowinglybreached the AMC notification provision that may constitute a form of unfair dealing. [81] The Applicant submits that the Adjudicator created and applied a legal test that is inconsistent with CARs, s 602.02. [82] The Court agrees that the inconsistency of the Adjudicator’s standard with that in the regulatory provision is patently obvious.Furthermore, the failure to apply the correct standard speaks volumes to the unreasonableness of the decision in many respectsthroughout the Adjudicator’s reasons. [83] CARs, s 602.02 stipulates that the phrase "“any reason to believe”" is the standard that airlines are required to apply todetermine whether or not a pilot is fit to operate an aircraft.

Unfortunately, the Applicant did not provide the Court with aninterpretation of "“any reason to believe”". [84] Nonetheless, as this decision is subject to an appeal, which may lead to the consideration of the reasonableness of theAdjudicator’s decision, the Court is required to review the Adjudicator’s reasons. In addition, given the Court’s concern that theAdjudicator’s reasoning might serve to guide future cases, it is preferable that the Court countermand some of the reasoning in thisregard. The review commences with an

interpretation of CARs, s 602.02. [85] The modern approach to statutory

interpretation requires that the words of a provision be read in their entire context and intheir grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention ofParliament (Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27 at para 21). [86] In its ordinary sense, a belief is something that one has in mind, as opposed to a fact. A fact must be proved concretely as alikelihood or probability based on an assessment and weighing of supporting evidence.

If a belief is with respect to a factual issue,it is an unfinished or speculative fact, i.e. a possibility. [87] By definition and logic therefore, a belief is about something that is possible; something that might or could happen or beestablished as a fact. As a legal standard, a belief does not require probative evidence to the point of being probable or likelyproven to be true. C. Remaining Issues Raised by the Parties: Reasonableness, Bias and ProceduralFairness

(1) Whether the Decision is Unreasonable

(

a) The

Interpretation and Application of CARs, s 602.02 (

i) Introduction (ii) Reason to Believe is a Possibility (iii) Scaling Possibilities [88] Although no court appears to have directly attempted to interpret the meaning of the phrase "“reason to believe”", as found infederal statutes, various decisions confirm that it is a "“possibility”" by association with a standard describing something that"“may”", "“might”" or "“could”" occur or exist.

For example, in the Supreme Court of Canada matter of Merck Frosst Canada Ltdv Canada (Health), 2012 SCC 3 at para 64, the Court cited the decisions of the Federal Courts in Twinn v Canada (Minister ofIndian Affairs and Northern Development), (FC), [1987] 3 FC 368 at p 373, aff’d (1987), 80 NR 263 (FCA)equating "“reason to believe”" with the term "“might”", as follows: The essential condition precedent to the issuance of the notice is that the respondent has reason to believe the disclosure ofthe record might be contrary to his obligation under

section 20 not to disclose records. [Emphasis added.] [89] Similarly, in Symbol Technologies Canada ULC v Barcode Systems Inc, 2004 FCA 339 at para 16, the Federal Court ofAppeal adopted an

interpretation of "“reason to believe”" as stated in National Capital News Canada v Canada (Speaker House ofCommons (2002), 2002 CACT 41 , 23 CPR (4th) 77 (Comp Trib).

It described the standard as requiring "“‘sufficientcredible evidence to give rise to a bona fide belief that the applicant may have been directly and substantially affected in theapplicant’s business by a reviewable practice, and that the practice in question could be subject to an order’”" [emphasis added]. [90] However, what these decisions do not provide is any guidance of "“any reason to believe”" as a legal standard in terms ofwhere it ranks in the taxonomy of various possibility standards. A legal standard of a possibility applies to facts of differentprobative value.

It is usually expressed as a phrase to describe the necessary probative value of evidence required by the specificiteration of the possibility that is applicable in the circumstances. Possibilities are problematic, just because they have nothreshold, but at best are ranges described by some appellation placing it on the possibility scale. [91] Standards based on possibilities bear no resemblance to the standard of a probability or likelihood threshold. The latterstandard promotes a clear, relatively easy to apply, "“either/or”" decision-making process, based on a threshold of being likely ornot.

Probabilities serve as the threshold of probative evidence required to prove both a fact, as well as the civil legal standard todetermine the successful outcome of a case based on the "“balance of probabilities”".

Probabilities are the gold standard of law,whereas possibilities are normally to be eschewed unless considered unavoidable. [92] Thus, while possibilities can generally be stated as something that "“might”" or "“could”" happen as a possible event or fact,these terms are difficult to work with consistently from decision-makers to decision-makers because they provide no threshold.Instead, they at best express a range that can usefully serve to measure the degree of probative evidence required for the variousdifferent contexts, where possibilities are employed as legal standards. [93] These varying ranges of possibility are best demonstrated by recourse to a theoretical numerical percentage threshold or rangeof possibilities that may be assessed against a "“certainty”", which is numerically represented as 100%. [94] Using this methodology, the possibility range is numerically described as a percentage somewhere between 1% to 50% of a100% certainty.

Possibilities are capped at 50% because the probability threshold commences at 51%, and continues to a certainty.The probability range does have other higher standards interceding, such as "“proof beyond a reasonable doubt”", which appears tobe a doppelganger of a reason to believe or doubt, but on the probability scale. [95] It would appear that Federal Court jurisprudence has provided four general descriptions differentiating ranges or thresholds ofpossibilities.

However, no attempt has been made to assign an evidentiary probative value to them, nor ranking them on that basis.The Court describes these possibility standards using a theoretical numerical construct, as follows: 1.

A “scintilla”, or “mere possibility”—used in patent law to state the utility required of an invention, utility essentially beingan unscalable criterion—, is equivalent to a range around 10%; 2. “More than a mere possibility”, a standard sometimes incorrectly cited in refugee law to prove persecution under section96 of the Immigration and Refugee Protection Act, SC 2001, c 27, is equivalent to a range around 20%; 3. “Having any or a reason to believe or doubt” used in various legislative enactments including in the CARs, s 602.02,equates to a range around 30%; and 4. “A serious possibility”, the most popular definition of a possibility, for example used to describe a well-founded fear inrefugee law, equates to a range around 40%, but providing an allowance of 15% for ease of separation from the threshold ofa probability.

(iv) Scaling a " “reason to believe” " [ 96 ] The foregoing resort to hypothetical numerical evaluations of possibilities serves only the purpose of generally placing " “any reason to believe” " as a legal standard sitting somewhere between those of " “more than a mere possibility” " and a " “serious possibility” " . [ 97 ] The point being, however, that " “any reason to believe” " represents a low range of probative evidence required to prove unfitness. This thereby, endows airline operators, and CAMEs, with a broad discretion to remove a pilot from duty or determine whether to refer a pilot to an AMC. [ 98 ] A liberal non-interventionist

interpretation of CARs , s 602.02, provides airline management and CAMEs with relatively broad discretions to respond to situations relating to a pilot’s risk of unfitness. It is harmonious with the scheme, object and intention of its drafters, and is consistent with promoting a highly safety-sensitive environment for air flight. [ 99 ] This

interpretation is supported contextually by other statutory and regulatory standards such as requiring a SMS to be established and applied by airlines. [ 100 ] The various provisions in the Canadian Aeronautics Act and its regulations are intended to ensure, not only the highest possible safety standards in Canadian airways, but also to assure the flying public that airlines are doing everything reasonably possible to prevent air flight catastrophes, which extends to those that are pilot-related. [ 101 ] These policies support the broad discretion airlines have to ensure pilot fitness, which places the onus of proof on the pilot to demonstrate fitness.

Pilots must be able to prove fitness, hence the requirement to undergo regular medical examinations in order to maintain their pilot’s licences. [ 102 ] In other words, the TOE provisions in

section 19 are not some form of management right. They are public interest provisions intended to protect the flying public and fellow flight crew. Any decision-maker reviewing the actions by managers of airlines implementing CARs , s 602.02 by the TOE should presume as a starting point that they are acting in good faith on behalf of the flying public and their colleagues . [ 103 ] Also to bear in mind is that CARs , s 602.02 and the relevant contractual paragraphs in

section 19 of the TOE serve to implement the regulatory obligation to ensure pilot fitness, which ultimately can be determined by the CAME’s opinion only. The key therefore, is to facilitate indeterminate situations of possible risk of unfitness being brought before a CAME. [ 104 ] It is accepted that the standard of " “any reason to believe” " to assess unfitness of pilots applies to and informs all of the procedures undertaken by an airline to determine fitness .

In this matter, this extends to the initial decision to remove the pilot from service, the investigation procedures, the referral of the pilot to a CAME for an AMC, and the CAME’s determination of fitness. [ 105 ] However, when facing an issue of considering unfitness of a pilot, the task of airline pilot managers is to screen the pilots whose conduct has raised the issue of unfitness to determine whether to refer the pilot to a CAME. As a screening step by pilot managers, even with the assistance of a physician such as Dr.

Knipping, they will not possess all the information that a CAME will have on which to make the assessment. [ 106 ] For example, when Dr. Knipping was advising Ms. Zamat of the range of costs for the independent medical examination in his email of March 16, 2017, he stated that it would depend " “on the psychometric testing and the need to interview crew, family, or other physicians and so forth.” " That is the CAME’s factual foundation. This factual foundation is considerably more comprehensive than that before Mr.

Foster, when he and the other personnel he consulted, made the initial decision to remove the Respondent from service or, thereafter, when the decision was made to refer him to a CAME. [ 107 ] This means that the reason to believe unfitness in referring the pilot to an AMC will be less reliable than that of the CAME’s final decision. It will be at the bottom of the possibility range and thus it will represent a more generous discretion to refer the pilot to the CAME, than the discretion exercised by the CAME.

The CAME’s discretion will be circumscribed by the more extensive information and medical expertise that the decision is based on.

All this to say that in referring to a CAME, one should expect to err on the referring side, given that the veritable decision will be forthcoming from the CAME. [ 108 ] Applying this reasoning to the present situation, assuming hypothetically that the Adjudicator had chosen to consider whether SRA’s referral of the Respondent to an AMC was reasonably made, based upon the standard of a " “reasonable reason” " to believe that he was unfit to fly, there would be little basis on which to conclude otherwise, given the airline’s broad discretion. [ 109 ] Thus, while the same standard of " “any reason to believe” " applies throughout all of the procedures, it obviously must be adjusted and considered in its application in accordance with the factual context underlying each decision, based upon the extent of reliable evidence available to support the decision.

The review is in the nature of an historical situation examined after the fact, with a strong focus on safety. What matters was the information before the decision-makers at the time the decision was made .

In that context, the issue is whether there is any objective basis for an adjudicator to challenge the decision, as was done with respect to SRA’s initial removal of the Respondent from service. [ 110 ] It is not, as the Respondent understands and which the Adjudicator seems to have accepted, an exercise similar to a grievance hearing, where all the information is known, and it is expected to be upheld by witnesses defending their decisions in an adversarial environment on the basis of factual and legal probabilities.

There is no requirement that Persons A, B, C and D will testify even were their anonymity not protected by federal regulation and policy. This is all the more so when the decision to refer is a form of collective high-level review, somewhat like a correlation of different pieces of evidence, to make the decision. [ 111 ] Thus, outcomes or completeness of previous incident complaints are relevant, but not necessarily determinative of the reliability or usefulness of information shaping the decision to refer a pilot for an AMC. It is within the discretion of management

to rely on historical documents involving similar circumstances to have a reason to believe unfitness, such as in this matter, based on past complaints from numerous pilots of relationship difficulties with the Respondent [ 112 ] The Adjudicator’s standard of " “serious cause” " is described at paragraph 139 of his reasons. The standard is then applied at paragraph 140 to reject SRA’s initial decision to remove the Respondent from service pending an investigation into his fitness to fly.

The Adjudicator then refers to this decision throughout the reasons as evidence of SRA meting out a punishment and altering a non-disciplinary procedure into a disciplinary one. The paragraphs in the Adjudicator’s reasons are as follows, with the Court’s emphasis: (

v) The Contextual Application of a Reason to Believe (

b) The Adjudicator Formulated his Own Legal Standard Bearing no Resemblance to that in CARs, s 602.02 [139] The sudden removal of a healthy Captain from his flying duty, before any kind of investigation and before informing the Captain of the incident or facts, which lead to the dismissal decision, requires a serious cause and an imminent danger that necessitates an immediate corrective action . [140] When I read the anonymous SMS report of February 28, 2017 which is a complaint from the First Officer against his Captain, about some flying procedures and a bad attitude towards him , “Prima Facie”, I do not really see, without investigation, a serious cause , a danger or a breach of safety rules that deserves drastic measures. [ 113 ] Vavilov at paragraphs 120–121 , teaches that when the meaning of a statutory provision is disputed, the decision-maker must demonstrate in its reasons that it was alive to these essential elements contained therein, and that it attempted to interpret the provision in a manner that is consistent with its text, context and purpose. [ 114 ] The Adjudicator did not demonstrate that he was alive to the issue of the correct legal standard, despite the Applicant submitting clearly that he should apply the test in CARs , s 602.02 of having " “any reason to believe” " that the pilot was unfit to operate an aircraft.

In addition, the Adjudicator cited no case law to support his legal standard of " “serious cause” " . [ 115 ] As an example of misapplying the " “serious cause” " standard to a factual situation, the Adjudicator exceptionally misapprehends the obvious essence of the SMS report of Person A in paragraph 140 of his reasons in stating that it is: “about some flying procedures and a bad attitude towards him. “Prima facie”, [the Adjudicator] d[id] not really see, without investigation, a serious cause, a danger or a breach of safety rules that deserves drastic measures.” [ 116 ] The SMS report provides several examples of Person A’s concern that the Respondent’s " “bad attitude” " was creating an unsafe situation in the cockpit, including: I did not speak up to any of those because of previous experience of his bad attitude and that’s where it’s becoming unsafe. … During his morning briefing he always says he is open to us to speak at any moment if we have any concern or uncomfortable about something but every time something is not going his way or something else happen, his attitude changes in a way to make me uncomfortable.

This kind of behaviour in a cockpit could easily lead to an incident/accident. Hopefully somebody will talk to him while keeping my confidentiality. [ 117 ] Transparency in reasons at least requires the Adjudicator to consider and respond to overt statements by a trained pilot, gently reporting a safety concern, with no indication of animosity or ill will, except to request that management speak to the Respondent to help him change his ways.

In comparison, the Respondent’s rebuttal was an all-out frontal attack suggesting that Person A was in need of additional training, and that his report contained " “patent falsehoods which should also be addressed with this individual.” " [ 118 ] Mr.

Foster testified that the complaint " “could indicate a potential breakdown in Crew Resource Management (‘CRM’) on the flights in question” " and " “that a breakdown in CRM in the flight deck has been proven to be a significant contributing factor to airline accidents in the past.” " The Adjudicator failed to refer to any evidence upon which he could reject the opinion of a senior flight operations director that the SMS report was evidence that this form of conduct in the cockpit has been " “a significant contributing factor to airline accidents in the past.” " [ 119 ] The Applicant argues that the Adjudicator’s failure to grapple with and apply the key standard of " “any reason to believe” " should cause the Court " “to lose confidence in the outcome reached by the decision-maker” " , again citing Vavilov at paragraph 122 : If, however, it is clear that the administrative decision-maker may well, had it considered a key element of a statutory provision’s text, context or purpose, have arrived at a different result , its failure to consider that element would be indefensible, and unreasonable in the circumstances.

Like other aspects of reasonableness review, omissions are not stand- alone grounds for judicial intervention: the key question is whether the omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached by the decision-maker. [Emphasis added.] [ 120 ] The Court agrees that the Adjudicator erred in not applying the legal standard from CARs , s 602.02 to assess the legality of removing the Respondent from service. The Court further agrees that the manner in which the Adjudicator applied his own legal standards to conclude that Mr.

Foster acted in bad faith and punished the Respondent was repeated throughout the reasons. He

generally imputed bad faith to all SRA witnesses, as concluding at paragraph 190, as follows: In the final analysis, it is important for the undersigned to say that, in my view, the Complainant was right when he submitted that the employer was not acting in good faith. [ 121 ] To arrive at this conclusion, the Adjudicator continued to apply the wrong standard throughout his reasoning.

He continually referred back to the original decision to remove the Respondent from service as converting a non-disciplinary procedure into a disciplinary one, not recognizing that the fulcrum point was the decision to refer him to an AMC and his refusal to comply.

No mention of a " “reason to believe” " standard is found anywhere in the reasons. [ 122 ] This is best demonstrated by the single reference in the reasons made to the CARs , s 602.02 found at paragraph 195: To claim that a pilot is unfit for duty, under the Canadian Aviation Regulations (section 602.02), and that the employer is prohibited from allowing him to perform his duties, due to one single SMS report, is not supported by evidence and not credible in the circumstances.

It is not acceptable to dismiss the Complainant, when the employer did not prove that they had serious cause to justify this decision. [Emphasis omitted and added.] [ 123 ] The standard of " “serious cause” " cannot apply in the face of the standard of " “any reason to believe” " in the CARs , s 602.02.

Thus, paying lip service to the Regulation s, but referring to the same erroneous standard of " “serious cause” " throughout the reasons, demonstrates that the Adjudicator misapprehended the role of the applicable regulation in setting the standard to review of the reasonability of the Applicant’s decisions to refer the Respondent to an AMC. [ 124 ] Instead, the Adjudicator applied general employment jurisprudence at paragraph 152 of the reasons stating that requiring an employee to undergo a medical examination is " “drastic action” " , which must have a " “substantial basis” " and is only required " “in rare cases” " .

Not only does an operator only require a " “reason to believe” " that a pilot is unfit to fly, the screening decision of SRA pilot managers, aided by a physician such as Dr.

Knipping, requires an arguably less strict standard to refer the Respondent to the CAME in the sense that the factual foundation to do so is considerably less comprehensive. [ 125 ] In conclusion, the Court is in agreement with the Applicant’s submissions that misconstruing the CARs , s 602.02, including misapplying the wrong standard with respect to SRA’s initial removal of the Respondent from service, and throughout the reasons, represent a significant error that undermines the Court’s confidence in the reasonableness of the Adjudicator’s decision. [ 126 ] The Applicant describes two situations where it claims that the Adjudicator demonstrated a reasonable apprehension of bias by comments made during the hearing.

One involves a statement by the Adjudicator where it is alleged that he referred to the Applicant’s document productions as " “suspicious” " , and later stated that he felt " “threatened” " by the Applicant’s counsel. The Applicant requested information explaining these statements, which was not forthcoming. The Court sees little benefit in analyzing these comments in terms of any impact on the final decision, though they add to concerns about a broader more general apprehension of bias of the Adjudicator against the Applicant. [ 127 ] The other allegation of bias involving Dr.

Knipping is however relevant, besides being an unfair attack on his reputation, such that the Court will review it in some detail. [ 128 ] The Applicant alleges that there was a denial of procedural fairness and natural justice evidenced by comments of the Adjudicator in a conversation he had with Dr. Knipping in the absence of counsel, by implying that SRA and the doctor were unfairly defending their case against the Respondent. [ 129 ] Dr.

Knipping swears that the Adjudicator engaged him in a conversation in the absence of counsel, who was absent to staple documents, prior to recommencing his examination in chief after the noon recess. His affidavit describes these comments and the apprehensions that they raised in Dr. Knipping’s mind as follows:

(2) Apprehension of Bias (

a) The Adjudicator’s Off the Record Conversation with Dr.

Knipping 16. … Adjudicator Goulet asked me if I thought it was fair when insurance companies retain high priced psychiatrists to deny the claims of employees with mental health issues. 17. … I felt that he was drawing an analogy between an insurance company deciding to retain a psychiatrist to evaluate an employee’s medical fitness, which he said was “unfair,” and the Applicant’s decision to consult with me in this case regarding the medical fitness of the Respondent. 18. … Adjudicator Goulet then expressed his personal opinion that he did not believe it was fair when insurance companies retain medical professionals to medically evaluate employees and that employees should not lose their benefits as a result of a medical examination ordered by a company. [ 130 ] In reply to Dr.

Knipping’s evidence, the Respondent’s swore that " “[n]o such discussion occurred, as I was in the same room. I am afraid the alleged discussion is a total fabrication” " . [ 131 ] Given the lack of nuance distinguishing the statements, being entirely incompatible with each other, i.e. either made or not, the Court accepts Dr. Knipping’s on the basis that he would not likely fabricate this evidence.

His version was substantiated to some considerable extent by the affidavit of the Applicant’s counsel, with handwritten documents and a memorandum attached describing the details of the ongoing events when he arrived back in the hearing room as the discussion was ending. Courts rely on litigation lawyers as Officers of the Court to communicate honestly and unambiguously with them in accordance with their

deontological codes of conduct. Moreover, the events described by Dr. Knipping are not of the sort that one would fabricate, i.e.references of unfairness related to physicians retained by insurance companies. [132] In addition, Dr. Knipping has impressive qualifications demonstrating a commitment to supporting the mental health of pilotsin the industry of aeronautics, such that his opinions and character should not be denigrated without compelling evidence insupport.

He is a cognitive behavioural psychotherapist who has spent a significant portion of his career providing psychologicalassessments and psychotherapy to private and professional pilots directly, and acts as a consultant to the aviation industry.

He hasbeen a CAME since 1986 and in over 30 years, he has evaluated thousands of pilots for the purpose of medically clearing pilots forduty, as well as treating hundreds of pilots for mental health disorders when referred to him. [133] The Court is also aware of other instances where the Respondent has claimed that the author of a derogatory documentfabricated the statements, such as his reference to what he called the "“patent falsehoods”" of Person A. [134] The Adjudicator similarly expressed concerns about the Respondent’s accusations against others with whom he disagreed, asfor example at paragraph 217 of the Adjudicator’s reasons when declining to order reinstatement, he indicated the following: 217.

Instead of showing concerns about the perception that come out of minor incidents, he claimed that all allegations were“false and vexatious”. Further, the Complainant claimed that the company intentionally destroyed documents to hide the factthat the company was allegedly flying unsafe planes. Without proof or evidence, he stated that Sky Regional Airlines hadgrown into a “Corporate Monster” over time[.] (

b) Statements Constituting Bias [135] The test for an apprehension of bias is what a reasonable, right-minded", “informed person, viewing the matter realisticallyand practically—and having thought the matter through—[would] conclude” "(Committee for Justice and Liberty et al v NationalEnergy Board et al, (SCC), [1978] 1 SCR 369 at page 394; Trevor Nicholas Construction Co v Canada (Ministerfor Public Works), 2003 FCA 277 at para 8). [136] The comments of the Adjudicator do suggest an apprehension of bias.

In the first place, to ask questions of a witness in theabsence of counsel in mid-examination on a subject that bears close resemblance to fairness issues before the Adjudicator,demonstrates a lack of judgment, and misunderstanding of the role of the Adjudicator, even accepting its less formal environment. [137] The questions asked were not about Dr. Knipping, but about the fairness of insurance companies retaining "“high-priced”"doctors to deny claims of employees with mental health issues. The Court finds that in the circumstances such a comment wouldreasonably be analogized to the fairness of SRA retaining Dr.

Knipping to have the Respondent’s employment terminated onmedical grounds, as appears to have been the unsubstantiated view of the Adjudicator throughout the reasons. [138] Moreover, the Adjudicator answered his own question, indicating that he did not believe that it was fair for insurancecompanies to act in this fashion. While the unfairness is attributed to SRA, it is clear that Dr.

Knipping was being questioned asSRA’s accomplice, by the allegation of working to terminate the Respondent’s employment on medical grounds. [139] It is particularly relevant that the Adjudicator would misdescribe companies who hire high-priced doctors as "“unfair”",inasmuch as he concludes that the Respondent was treated both unjustly and unfairly by SRA. [140] The comments also demonstrate that the Adjudicator has no comprehension of the public interest component of theapplicable regulations and

section 6.5 of the Aeronautics Act. Nor in that regard is there any understanding of the importance thatpilots unfit to fly be removed from service whenever concerns arise. Instead, the Adjudicator viewed this issue, and most of theissues in this matter, through the lens of the traditional adversarial employee-employer paradigm.

Discipline has no application inthis case, except in the final analysis of determining whether refusing to undergo the AMC constitutes insubordination as a justcause for dismissal, which was not an issue in this case. [141] The Respondent submits that the Court should not consider the apprehension of bias issue involving Dr. Knipping becausethe Applicant failed to raise it during the hearing, advancing it for the first time in this matter.

The Court agrees that SRA did notbroach the issue during the adjudication. [142] This submission is usually described as "“waiving”" any right to claim bias by failing to bring it to the attention of theadjudicator at the earliest possible moment. The Federal Court of Appeal described the principles applying to waiver of a claim ofbias, placing it on the same footing as for procedural fairness submissions, in Hennessey v Canada, 2016 FCA 180 at para 20[Hennessey], stating the following: (

c) Waiver of Bias All these allegations of bias and unfairness fail for another reason. It is well-known that allegations of bias and proceduralunfairness in a first-instance forum cannot be raised on appeal or judicial review if they could reasonably have been thesubject of timely objection in the first-instance forum, here the Federal Court: Mohammadian v.

Canada (Minister ofCitizenship and Immigration), 2001 FCA 191, [2001] 4 F.C. 85; In Re Human Rights Tribunal and Atomic Energy ofCanada, (FCA), [1986] 1 F.C. 103 (C.A.) at page 113; Maritime Broadcasting System Limited v.Canadian Media Guild, 2014 FCA 59, 373 D.L.R. (4th) 167 at paras. 67-68. [143] The Court retains the discretion to determine whether the submission of an apprehension of bias was waived based onwhether it "“could reasonably have been the subject of timely objection”".

The Court understands that "“could reasonably”" mustbe viewed in the context of the adversarial system, and the best interests of the client being represented by counsel.

[144] In the circumstances of this case, the Court concludes that the Applicant did not waive its right to advance its biassubmission against the Adjudicator concerning Dr. Knipping for a number of reasons. [145] First, the statement was off the record. It was made in the absence of the Applicant’s counsel.

It patently demonstrates thatthe Adjudicator has concerns about the fairness of any party, insurer, airline, etc. retaining "“high-priced”" physicians to defendtheir cases, particularly in this case where he concludes that SRA treated the Respondent unfairly. [146] Moreover, the Adjudicator’s statement ignores that the veritable issue in this matter is based on medical determinations,which require a physician’s factual involvement to assist layperson pilot managers in making the right decision on latentpsychological unfitness, sufficient to require the Respondent to undergo an AMC. [147] Second, the Court has a number of problems discussed below with the Adjudicator’s negative evidentiary rulings andfindings that portray Dr.

Knipping as acting in bad faith against the Respondent’s interests. The Adjudicator’s off the recordcomments are relevant to corroborate the unreasonableness of the Adjudicator’s negative judgment of Dr. Knipping. [148] That is to say that when the issue passes the threshold from an apprehension of bias to consideration of conduct that thereviewing court might consider to constitute actual partiality, if corroborated for example by a lack of transparency or the absenceof evidence, the "“first instance”" rule does not apply. [149] The terms bias and partiality are sometimes used interchangeably.

However, there is a difference in their meaning. Biasrefers to attitudes, whereas partiality speaks to conduct. The distinction was noted by Doherty J.A. in R v Parks (1993), (ON CA), 15 OR (3d) 324 at paras 35–36, cited with approval in R v S (RD), (SCC), [1997] 3 SCR484 at para 107: Partiality has both an attitudinal and behavioural component. It refers to one who has certain preconceived biases, and whowill allow those biases to affect his or her verdict despite the trial safeguards designed to prevent reliance on those biases.

Apartial juror is one who is biased and who will discriminate against one of the parties to the litigation based on that bias. Tobe relevant to partiality, a proposed line of questioning must address both attitudes and behaviour flowing from thoseattitudes. ...

A juror’s biases will only render him or her partial if they will impact on the decision reached by that juror in a mannerwhich is immiscible with the duty to render a verdict based only on the evidence and an application of the law as providedby the trial judge. [Footnotes omitted.] [150] There is also a distinction between an appearance of bias and (actual) partiality. Appearances refer to inferences of attitudesthat arise from the witness's relationships, status, and predilections, etc. that tend to predict partiality in the presentation of his orher evidence.

Partiality is demonstrated by the testimony of a witness, as for example when he or she becomes an advocate,overreaches in his or her testimony, or is evasive and unreasonable around substantive issues in the opinions offered to the Court. [151] Third, it is not clear what corrective or other action by the Adjudicator could follow a challenge by a party that his commentswere evidence of an apprehension of bias.

The Court of Appeal in Hennessey was directing its mind to procedural matters thatcould be corrected, stating at paragraph 21: A party must object when it is aware of a procedural problem in the first-instance forum. It must give the first-instancedecision-maker a chance to address the matter before any harm is done, to try to repair any harm or to explain itself.

A party,knowing of a procedural problem at first instance, cannot stay still in the weeds and then, once the matter is in the appellatecourt, pounce. [Emphasis added.] [152] In this case, the evidence of an apprehension of bias exists in the Adjudicator’s statements. The statements cannot be undone.These circumstances in no way resemble those in Hennessey, where the statement was obiter in respect of bias. The Court ofAppeal rejected the alleged facts said to represent bias.

Other cases, such as the decision in Mohammadian v Canada (Minister ofCitizenship and Immigration), 2001 FCA 191 involved problems with an interpreter’s incompetence that obviously could havebeen corrected in the first instance. The policy underlying the "“first instance”" rule to raise bias issues is to prevent "“lying in theweeds”", when the corrective action can be taken immediately to prevent the matter being set aside at a later date. [153] It should also be a general presumption that it is not counsel’s duty to caution decision-makers that they are acting in anapprehensively biased fashion.

This is the rule when a conflict of interest arises concerning the decision-maker, where it isimproper to seek the parties’ views on the issue of a matter to be decided by the Court.

Except when the apprehension of bias isclearly repairable, and therefore by counsel not raising it, wasting precious legal resources that undermines the administration ofjustice, is there a duty on counsel as an Officer of the Court to prevent this from happening. [154] Moreover, in the highly charged environment of the courtroom, the reality is that most lawyers are loath to challengedecision-makers on the basis that they appear to be acting unfairly, over concerns that judges are human.

It is the Court’sexperience that few lawyers will risk annoying judges, if bias already appears to be their affection, unless it is so apparent that thejudge’s conduct borders on partiality and is not repairable. [155] The Court sees no justifiable reason that an apprehension of bias should change in the middle of a badly run hearing, whenunacceptable comments of the decision-maker are relevant to the proceeding, which may be corroborated going forward, and indoing so ultimately support a finding of an apprehension of bias approaching actual partiality. [156] It is the Court’s view that prudence must be exercised in applying the "“first instance”" rule to exclude clear, irreparableevidence of an apprehension of bias.

The bar is already set high to prove an apprehension of bias. When the evidence demonstratesotherwise, the reviewing court may be seen as placing the interests of the lower court or tribunal ahead of those of the unsuccessfulparties, who have an expectation that justice shall be seen to be accorded, feeling that they have already been the victim of the

decision-maker’s obvious bias. [ 157 ] The best means to assuage an apprehension of bias is with a set of very solid reasons to support the decision. If the decision is based on unassailable factual conclusions and legal principles, an apprehension of bias not amounting to partiality should have no effect on the outcome. This should be explained to the unsuccessful party as a " “but for” " situation, the apprehension of bias would have resulted differently. [ 158 ] The Court finds that overall, the Adjudicator paints Dr.

Knipping’s evidence in a highly disapproving light that supports the Applicant’s concerns of an apprehension of bias on the part of the Adjudicator. [ 159 ] An example of the disparaging bias towards Dr. Knipping is found at paragraph 155 of the reasons. The Adjudicator erroneously adopts the Respondent’s double hearsay statement regarding the reputation of Dr. Knipping justifying why he refused to undergo an AMC conducted by him, stating the following: (

d) Evidence of Bias Affecting the Adjudicator’s Conclusions Regarding Dr. Knipping’s Testimony (

i) Denigrating the Rep

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