The Suspension or Cancellation of Canadian Aviation Documents Due to “Incompetence”
by Jean-François Mathieu, LL.B., Chief, Aviation Enforcement, Standards, Civil Aviation, Transport Canada
Previous issues of the ASL have contained articles that described the recently published staff instructions SUR-014, 015 and 016—the Transport Canada Civil Aviation (TCCA) internal guidance material related to the suspension or cancellation of a Canadian aviation document (CAD) or revocation of managerial positions approved by the Minister. The first article introduced these TCCA staff instructions, and indicated that future articles would delve further into the legal authorities that the Minister has for “certificate action”, i.e., the suspension or cancelation of CADs, such as licences or certificates. The second article in this series detailed the suspension of a CAD under the authority of section 7.(1) of the Aeronautics Act (the Act), which enables a TCCA inspector to respond to an “immediate threat to aviation safety”. This article will focus on the Minister’s authority to take certificate action when “the holder of the document is incompetent.”
Section 7.1(1) of the Act specifies that the Minister may take certificate action for safety reasons other than a situation that poses an immediate threat to aviation safety. The three reasons are listed in paragraphs 7.1(1)(a), (b) and (c) of the Act:
- the holder of the document is incompetent;
- the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to meet the qualifications necessary for the issuance of the document or to fulfil the conditions subject to which the document was issued; or
- the Minister is of the opinion that the public interest and, in particular, the aviation record of the holder of the document or of any principal of the holder, as defined in regulations...warrant it.
The meaning of “incompetent”—in terms of paragraph 7.1(1)(a) of the Act—is a fundamental concept that must be clearly understood. This key term is not specifically defined in the Act or in the Canadian Aviation Regulations (CARs). For guidance, we can consider dictionary definitions, as well as past determinations of the Transportation Appeal Tribunal of Canada (TATC).
The Concise Oxford Dictionary, Eighth Edition, defines “incompetent” as:
- not qualified or able to perform a particular task or function
- showing a lack of skill
- not able to perform its function.1
The definition for “incompetent” in Merriam Webster’s Collegiate Dictionary, Tenth Edition, includes:
- inadequate to or unsuitable for a particular purpose
- lacking the qualities needed for effective action
- unable to function properly”.2
In this context, “incompetence” refers to the inability to perform required activities. Therefore, it is an inability to comply rather than an unwillingness to comply.
The TATC3 has previously rendered decisions on the concept of “incompetence” and has adhered to a set of principles that were enumerated in Mason v. The Registered Nurses’ Association of British Columbia:
- The particular definition placed upon the word ‘incompetency’ should be molded by the object of the enactment in which the word appears.
- All the definitions of ‘incompetency’ focus on the lack of ability, capacity or fitness for a particular purpose.
- The want of capacity, ability or fitness may arise from a lack of physical or mental attributes. However, a person not lacking in physical or mental attributes may nonetheless be incompetent by reason of a deficiency of disposition to use his or her abilities and experience properly.
- Negligence and incompetence are not interchangeable terms. A competent person may sometimes be negligent without being incompetent. However, habitual negligence may amount to incompetence.
- A single act of negligence unaccompanied by circumstances tending to show incompetency will not of itself amount to incompetence.4
The TATC has also further amplified the first principle: “The object of the enactment in which incompetence appears (i.e., Aeronautics Act) is aviation safety.”5
Evidence that collectively demonstrates an inability to comply with the regulations and standards, over a reasonably lengthy period of time, demonstrates a state of incompetence; one or two incidents do not constitute sufficient grounds to substantiate incompetence. The evidence used by the Minister to support certificate action is itemized in the Notice of Suspension (NoS) or Notice of Cancellation (NoC) served to the document holder. The burden of proof rests with the Minister, who must prove on the balance of probabilities [subsection 15.(5)] of the Transportation Appeal Tribunal of Canada Act, that certificate action is warranted.
There are often similar characteristics or an interrelationship between the circumstances and criteria cited to support certificate action under the various provisions of section 7.1(1) of the Act. For example, a significant history of non-compliance may result in certificate action under Section 7.1(1)(a) (incompetence), or Section 7.1(1 (c) (public interest). In order to support a certificate action taken under Section 7.1(1)(a) —based on the incompetence of a CAD holder—it must be demonstrated that the repetitive non-compliant acts are the result of an inability to comply rather than an unwillingness to comply. In contrast, repetitive non-compliant behavior— which was not based on incompetence, but instead conducted to further other needs such as a business or financial goals— would support certificate action under Section 7.1(1)(c), for reason of public interest. In consideration of the available evidence, TCCA will determine the appropriate course of action to be taken.
There are a number of legislative requirements in both the Act and the CARs that specify the form and content of an NoS or NoC. Certificate action under any of the provisions of section 7.1(1) of the Act is not taken in response to an immediate threat to aviation safety (section 7.(1) of the Act deals with immediate threats to safety). Therefore, because an immediate threat to aviation safety is not present, the CAD holder is provided an effective date of the suspension or cancellation that is a later date than the date of service of the notice (typically 30 days). The notice will include a clear and accurate description of the nature of the alleged incompetence. In the case of suspension, because suspensions under the authority of this section of the Act are intended to deal with safety related matters, no duration for the suspension will be stipulated. However, an NoS will include the conditions necessary to resolve or rectify the incompetence (there may be more than one) in order to terminate the suspension.
Due to the nature of “incompetence” as defined above, certificate action for this reason is only applicable to an individual; it does not apply to a corporation.
The NoS or NoC will include a notification that the recipient must return the CAD to the Minister immediately after the suspension or cancellation takes effect. This is a requirement of section 103.03 of the CARs. Refusal (or failure) to return the CAD to the Minister following a suspension or cancellation constitutes a contravention of this section of the CARs.
This type of certificate action is subject to review by the TATC. Any person who has been served with an NoS or NoC for “incompetence” may request a review of the Minister’s decision before the TATC.
For more information on the subject, please refer to Staff Instruction SUR-014.
Invest a few minutes into your safe return home this winter...
...by reviewing section AIR 4.13 of the Transport Canada Aeronautical Information Manual (TC AIM), titled “First Aid Kits on Privately Owned and Operated Aircraft.”
TC AIM Snapshot: Monitoring 126.7 MHz and Position Reporting En route
Pilots operating VFR en route in uncontrolled airspace when not communicating on an MF, or an ATF, or VFR on an airway should continuously monitor 126.7 MHz and whenever practicable, broadcast their identification, position, altitude and intentions on this frequency to alert other VFR or IFR aircraft that may be in the vicinity. Although it is not mandatory to monitor 126.7 MHz and broadcast reports during VFR or VFR-OTT flights, pilots are encouraged to do so for their own protection.
1 The Concise Oxford Dictionary, Eight Edition, Oxford University Press, Oxford, U.K. 1990, p. 598
2Merriam Webster’s Collegiate Dictionary, Tenth Edition, Merriam-Webster, Springfield, MA, 1996, p. 588
3TATC File No. C-3128-21
4Mason v. Registered Nurses’ Assn. of British Columbia, 102 D.L.R. (3d) 225.
5 CAT File No. A 1789 25, p. 9