Date: 19980306
Docket: T-1198-97
BETWEEN:
CHARLES LARIVIÈRE
Applicant
- and -
OTTAWA MACDONALD-CARTIER INTERNATIONAL
AIRPORT AUTHORITY
Respondent
REASONS FOR ORDER
REED, J.:
[1] The applicant brings an application to set aside a decision of the Ottawa MacDonald-Cartier International Airport Authority ("airport authority"), dated May 7, 1997, which decision cancelled his permit to operate vehicles on the airside of the terminal. He worked for CARA Operations and Air Canada. Part of his job involved driving the ground vehicles that are used to load and unload food trays into and from the aircraft. The cancellation of his airside vehicle operator's permit ("AVOP") led to his loss of employment with CARA and Air Canada. The applicant asserts that the procedure used in making the decision to cancel his AVOP did not meet the standards of fairness required and that the decision made to cancel his AVOP was an unreasonable one.
Facts
[2] The event that triggered the decision to consider whether his AVOP should be cancelled occurred on March 18, 1997. On that date, a Boeing 737 (Canadian flight 826) was required to brake suddenly as it was moving into gate 22. A member of the ground crew signalled the pilot to stop. The signal was given to avoid a potential collision between the aircraft and the vehicle that the applicant was driving. The applicant also stopped his vehicle and, then, backed up to allow the aircraft to proceed safely into the gate.
[3] A cardinal rule of airside ground vehicle operation is that aircraft always have the right of way; ground vehicles must always yield to aircraft. Also, the vehicles must be operated in a prudent and cautious fashion around moving aircraft so as to avoid the creation of situations that are dangerous to aircraft, equipment, persons or vehicles. These rules are set out in the Manual of Airport Traffic Directives for the Operation of Vehicles on Airport Movement Areas, January 1987, issued by Transport Canada.
[4] The R.C.M.P. arrived within a few minutes of the incident, to investigate. An AVOP warning ticket was issued by the R.C.M.P. to the applicant. It cites the reason for issuing the ticket as "fail to give way for an aircraft turning at gate 22, flight Canadian 826". At the bottom of the ticket the applicant's signature appears after the following text:
I hereby understand that this serves as a warning that I have violated the administrative portions of the AVOP via my infraction outlined above and may be subject to review by the Transport Canada AVOP Coordinator.
Je comprends que la présente est un avertissement que j'ai enfreint la portion administrative de l'AVOP en commentant l'infraction mentionnée ci-dessus et qu'elle peut être soumise à une revue par le coordinateur de l'AVOP pour Transports Canada.
[5] On March 18, 1997, the R.C.M.P. took written statements from the applicant and from the driver of a second CARA truck that was following the applicant, a Mr. Kenny. The pilot also gave a statement to the R.C.M.P., by letter dated March 20, 1997. That letter carries the heading "Re: Near Collision of Canadian Flt. 826 with a Catering Truck". The pilot describes the incident from his perspective, stating that the truck in question appeared to be proceeding "oblivious to the aircraft" and that, after stopping, the truck had had to back up in order for the aircraft to proceed.
[6] The issuance of the ticket by the R.C.M.P. gave rise to an investigation by a safety officer employed by the airport authority (a Mr. Gilmore). Mr. Gilmore reports to the Director of Airport Safety and Security Services (Mr. Thistle). Mr. Gilmore reviewed the letter of March 20th written by the pilot to the R.C.M.P. He collected information. He spoke to the applicant and reviewed the applicant's personnel file. The R.C.M.P. subsequently submitted a report to Mr. Thistle, dated April 9, 1997. This report included a description of both the pilot's version of the incident and the explanation the applicant had given on March 18, 1997.
[7] The applicant's explanation of what had occurred was, first, that his worksheet had shown that the Canadian flight was going into gate 28, the usual gate for this flight, and, secondly, that the pilot had made an error by passing the yellow centre guide lines for gate 22, thus, leading the applicant to conclude that the plane was heading for gate 28. In the applicant's view, it was the pilot's error in making a wide turn into gate 22 that was the cause of the incident.
[8] It was subsequently demonstrated that the applicant's worksheet had correctly shown the aircraft as arriving at gate 22, not gate 28. Also, while the reports that refer to the airplane's approach to the gate all describe it as having been one involving a wide turn, or one in which the pilot "almost missed the gate", there is no evidence supporting the applicant's assertion that such a wide turn is pilot error or absolves a ground vehicle operator of the responsibility to keep out of the way of the moving aircraft.
[9] On April 11, 1997, Mr. Thistle made the decision to cancel the applicant's AVOP. He had before him the report dated April 9, 1997, from the R.C.M.P., and the pilot's letter of March 20, 1997. Mr. Thistle had spoken to Mr. Gilmore from time to time during the course of the investigation. Mr. Thistle also had the applicant's personnel file, which contained the record of previous driving infractions, particularly, documentation relating to an infraction of February 18, 1994.
[10] On February 18, 1994, the applicant had backed into a fuel truck. Consequent thereon Mr. Thistle had written, on March 9, 1994, to the applicant's employer CARA stating that if there was any further serious infraction the applicant's AVOP would be permanently cancelled:
| . . . . |
| As you are aware, Mr. Larivière has had several AVOP driving infractions. He was re-tested on all aspects of the AVOP program several months ago, and was warned at that time that any other serious incidents would result in a longer suspension. |
| Please note that any further AVOP warnings of a significant nature, such as cutting off aircraft, or vehicle/vehicle, vehicle/aircraft accidents, will result in a permanent suspension of Mr. Larivière's airside driving privileges. |
| We hope you convey the seriousness of this letter to Mr. Larivière and understand that we wish to provide a safe environment for all who work and travel at this airport. |
| . . . . |
[11] A letter dated April 27, 1994 was sent from CARA to the applicant. It established the date as of which the applicant was to return to work and conveyed, what I will call, the ultimatum set out in Mr. Thistle's March 9, 1994 letter:
| . . . . |
| This letter will serve as an ammendment [sic] to the letter dated March 17, 1994 concerning your suspension due to an accident which you had involving an Esso fuel truck on February 18, 1994. |
| In this letter it was stated that you would serve your three day suspension, without pay, upon your return to work from your injury status. |
| You have advised the company that you will be returning to work on Thursday April 28, 1994. Therefore, this letter will serve to notify you that you will serve your suspension on Thursday April 28, Friday April 29 and Saturday April 30, 1994 inclusively. |
| I would like to take this opportunity to remind you again that it is your responsibility to adhere to A.V.O.P. regulations while driving airside. Should you receive any further A.V.O.P. warnings of a significant nature M.O.T. will permanently suspend your airside driving privileges and this will result in termination of your employment with CARA operations. |
| . . . . |
[12] The applicant asserts that he never received this letter. It is very difficult to believe that the applicant did not receive the letter and that he did not know about the position expressed therein.
[13] In any event, as noted, on April 11, 1997, in the light of the material he reviewed, Mr. Thistle decided that the applicant's AVOP should be cancelled. After he made this decision, submissions were made by representatives of the two unions to which the applicant belonged. As an employee of Air Canada the applicant was a member of one union; as an employee of CARA he was a member of another. It is the latter union, the Hospitality and Service Trades Union, that has been active in assisting the applicant. The submissions from both unions were that the procedure followed in making the decision to cancel the applicant's AVOP had not met the required standards of fairness. From the events that followed, I think it can be concluded that it was generally agreed that the procedure had fallen short of what is required when a decision is taken that effectively results in the loss to an individual of his employment.
[14] Ms. Nicholson, legal counsel to the airport authority, then, met with the applicant and his union representative on April 23, 1997. She had previously advised them that if there were facts about which the authority was not aware, which the applicant wished to present, the applicant or his representative should bring those facts to the authority's attention. At the April 23, 1997 meeting, the applicant and his union representative were provided with copies of the pilot's letter, the R.C.M.P.'s report, the applicant driving record as it appeared on his personnel file, and the national and local directives respecting the airside operation of vehicles. There is no dispute that the applicant knew that the relevant rules with respect to vehicle operations required airside vehicle operators to give way to all aircraft. He had been provided with the relevant directives and tested on them three times between 1989 and 1997.
[15] At the April 23rd meeting, the applicant and his union representative provided Ms. Nicholson with a copy of the statement the applicant had provided to the R.C.M.P. on March 18, 1997, which contained his explanation of the events of that evening. That explanation does not differ from the description contained in the R.C.M.P.'s report of April 9, 1997. The applicant and his representative also provided Ms. Nicholson with copies of the letters the applicant had received from CARA terminating his employment as a result the cancellation of his AVOP.
[16] The applicant took the position, as he had earlier, that the incident of March 18, 1997, had occurred as a result of pilot error - the pilot had turned the plane too quickly at the last minute. The applicant and his union representative asserted that two ground crew members, Al Johns and Murray Evans, would confirm the explanation that the incident had been caused by pilot error. The applicant and his union representative also asserted that there was a lack of specificity in the traffic directives concerning how far away ground vehicles should stay from moving aircraft. When asked why he did not realize the plane was going to turn into gate 22 when the ground crew was at that gate, the applicant responded that the loading bridge blocked his line of sight and he could not see the ground crew.
[17] In consequence of these representations, Ms. Nicholson and Mr. Gilmore went to speak to at least some of the ground crew who had witnessed the incident. Those individuals did not support the applicant's position. In particular, Mr. Currie, who had been the ground crew member to signal the pilot to stop, described the incident:
| ... The 2 CARA trucks, travelling one behind the other, showed no signs of slowing down or giving way to the aircraft that was going to turn onto gate 22. |
| At this time I began to walk up the lead-in line towards the vehicle corridor, hoping the lead CARA truck driver would see me and come to a stop before crossing gate 22. The truck maintained its speed. I could see that as the plane started its turn the speed of the lead truck was not going to allow it to avoid a collision with the aircraft. |
| It was at this time that I crossed the wands in front of me (this being the stop sign for CP aircraft) in an attempt to stop the aircraft before crossing the vehicle corridor. As the aircraft came out of its turn on the lead-in, the flight crew alertly saw my stop sign and braked the aircraft. During this time the lead truck also realized the situation and came to a full stop. The aircraft turned on various lights to illuminate the area and I waved the CARA truck to back up as it was well within the wingspan of the aircraft and it would not park. |
| After the CARA truck had backed off, I waved the aircraft in and parked it. After doing so, I went to ask the driver of the lead truck (known to me as Charlie) what had caused this situation. There appeared to be an RCMP officer in the truck already, so I off loaded the aircraft. After doing so, I approached the driver. He stated that it was an RCMP officer, that he had been issued a warning or some other report and that he thought the aircraft was going to gate 28, not gate 22. |
[18] Mr. Johns told Ms. Nicholson and Mr. Gilmore that the driver of the CARA vehicle was going at a pretty good speed and was "trying to beat plane - gaining on plane", that the "plane did wide turn - not that unusual" and "everyone hit brakes hard". These notes also indicate that the applicant had approached Mr. Johns telling him to send a letter, or be subpoenaed, and telling him what to say. The applicant was surprised at what Mr. Johns said to Ms. Nicholson and Mr. Gilmore. He expected Mr. Johns to support his allegation of pilot error. The applicant now asserts that both Mr. Currie and Mr. Johns are lying.
[19] On the evening of March 18, 1997, the applicant had spoken with three witnesses to the event: Mr. Kenny who was the CARA truck driver driving a truck behind the applicant; Mr. Johns, whose evidence has already been referred to; and Mr. Murray Evans, another ground crew member. The applicant expected all three to file written statements in support of his assertion that the cause of the accident was pilot error. Mr. Kenny did provide a statement on March 18, 1997. It does not allege, however, that pilot error was the cause of the incident. It sets out the facts as follows:
| Tonight at around 9:00 pm three was an incident, that a CARA driver cut in front of a plane.Well what I say was Charlie was driving on the vehicle corridor going past gate 20, the CP plane was suppose [sic] to be going on 22 but from the looks of it the CP plane was going past as he almost missed his gate, but as the pilot had to oversteer to get back to the gate. Charlie stopped and had to back up to clear the wing. But at no time was it close enough to call it an accident. There were other witnesses that saw the same thing I saw. |
[20] The other two witnesses, despite what that applicant expected, did not file written statements, and, as noted, when Mr. Johns was interviewed by Ms. Nicholson and Mr. Gilmore, he did not support the applicant's allegation that the pilot was at fault. Ms. Nicholson and Mr. Gilmore did not speak to Mr. Evans or Mr. Kenny. The applicant challenges the quality of the investigation because of the failure to do so.
[21] With respect to the allegation that the rules of operation for the vehicles are not specific enough, Mr. Thistle responded, on cross-examination, "the rules are quite clear, everywhere, everywhere, everywhere aircraft have priority, as simple as that".
[22] An assessment was also made by Ms. Nicholson and Mr. Gilmore as to whether the loading bridge would have obscured the applicant's view of the ground crew. It was determined that this could not have been the case. The applicant now asserts that it was not the loading bridge alone that was the cause of the sight obstruction but the heating equipment that was in use in conjunction with the bridge.
[23] The applicant and his union representative sought a meeting with Mr. Thistle before a final decision was made. They also were asking that a decision be made quickly (by May 6) because if the matter was not resolved to their satisfaction they contemplated initiating an application for judicial review of the April 11, 1997 decision; the 30 day time limit for doing so was fast approaching. A meeting, as requested, was convened on May 6, 1997. The applicant came late to the meeting and, while he now states that there was relevant information not given to him at that time, I accept that either the applicant or his union representative was made fully aware of the results of the further investigations that had been conducted by Ms. Nicholson and Mr. Gilmore. This is so even though the applicant may not have been given copies of the interview notes and Mr. Currie's memorandum.
[24] At the May 6, 1997 meeting, the applicant stated that both his employers, CARA and Air Canada, considered the cancellation of his AVOP to be too severe a penalty. Consequently, before rendering a final decision on May 7, 1997, Mr. Thistle spoke to representatives of the employers directly. He was told that CARA supported the penalty that was being imposed while Air Canada would support whatever decision Mr. Thistle made. Mr. Thistle's description of the response by CARA and Air Canada, as set out in his affidavit, is:
| ... Contrary to the submissions of [the applicant] Lariviere and [his union representative] Jim McDonald, CARA made it absolutely clear that they did not wish to have Lariviere back as an employee and that they too were very concerned about safe driving issues and intended to make violations of airside driving rules a subject for disciplinary action by the employer in the next collective agreement. In fact, CARA stressed to us in no uncertain terms their concern about the potential consequences of a collision between a truck and an aircraft in human and financial terms and expressed shock at how close Lariviere had come to causing a horrible accident. We then spoke with Mike Tremblay at Air Canada who did advise that if Lariviere had his AVOP privileges, they would take him back. |
(underlining added)
[25] It is not surprising that CARA was more concerned than Air Canada since at the time of the incident the applicant had been driving on behalf of CARA. Any liability that might have arisen from an accident would have been borne by CARA. In any event, the applicant's assertion that both employers thought the penalty imposed was too severe was simply not true. The applicant now asserts that CARA failed to support his position because there is a conflict between himself and the employer arising from his union activities.
[26] Another aspect of the applicant's concern about the procedure relates to the content of his driving record found on his personnel file. There were five pre-March 18, 1997 infractions in all: failure to give way to an aircraft on November 27, 1992; failure to give way to an aircraft on September 13, 1993; driving a vehicle in an unsafe condition (one of the headlamps was out) on October 1993; collision with the fuel truck on February 18, 1994 (referred to above); speeding on December 27, 1994 (driving at 44km/hr. in a 25km/hr zone).
[27] The applicant contests the accuracy of the November 27, 1992 notation. He states that he was not the person involved in the November 27, 1992 incident, that he never had any notice of it, and knows nothing about it. In his affidavit he stated:
| . . . . |
| 22. Until after April 11, 1997, I was not even aware for example, of an allegation that I was involved in an incident on November 27, 1992. I had not been previously informed of this allegation by Transport Canada, by CARA Operations Ltd. or by Air Canada. The allegation is without foundation as I was not the driver involved in this incident. Nevertheless it appears that the Authority may have wrongly relied on this allegation. |
(underlining added)
[28] This statement proved to be false. It was clear from the material on his personnel file that he knew about this notation by at least September 13, 1993; he objected at that time to its accuracy. There is a paucity of documentation with respect to the November 27, 1992 incident. His assertions cannot be disproved; all that exists, in documentary form, is the notation on his personnel file. Mr. Thistle was aware of the disputed status of this "infraction" when he made his decision.
[29] There is no dispute concerning the correctness of the notation of the September 13, 1993 incident. Also, I think everyone agrees that the incident of October 1993 was a minor matter. The accident with the fuel truck on February 18, 1994, however, was clearly a very serious matter. With respect to the alleged speeding infraction of December 27, 1994, the applicant asserts that this should not appear on his record. The applicant contested this charge in the criminal courts and was acquitted because of an identification problem with the evidence.
[30] The applicant asserts that the December 27, 1994 incident should be ignored insofar as his personnel record is concerned. Mr. Thistle's position is that it should properly remain on the record because the applicant's acquittal was a result of a technicality. Mr. Thistle asserts that his concern is with safety at the airport, and the criminal burden of proof is not appropriate for that purpose. Since there was radar evidence by the R.C.M.P., clocking the speeding, Mr. Thistle takes the position that he is entitled to consider that incident as having been an infraction by the applicant of the AVOP directives.
[31] I note that Mr. Thistle states, in his affidavit, that the significant aspects of the record, in his view, were the previous failure to yield to an aircraft, the September 13, 1993 incident, and the collision with a fuel truck, the February 18, 1994 incident:
| . . . . |
| ... I made the decision to suspend Lariviere's AVOP. I did so because I needed to do so in order to protect the safety of all individuals at the Airport. I wish to stress in particular that Lariviere's having previously backed into a fuel truck, and my having already warned him in writing after a previous incident of failing to yield to an aircraft that we could only afford to give him one more chance, were the factors of utmost importance to my decision. |
| . . . . |
[32] With respect to the May 6, 1997 meeting it is relevant to reproduce part of the transcript of the cross-examination of the applicant concerning the conduct of that meeting:
| 368. Q. Now at that meeting, were you cut off and told we don't want to hear any more, you've told us too much, meeting over? |
| A. No. |
| 369. Q. Never? |
| A. No. |
| 370. Q. At that meeting were you told that you had already provided a statement, they weren't going to listen to any more information? |
| A. No. |
| 371. Q. At that meeting were you told that you could not bring other evidence in, you could not provide other statements or come forward with other information? |
| A. I don't recall, no. |
| 372. Q. All right. And as I understand it, the way the meeting ended was that your representative and the representatives of the authority had finished, everyone had said what they wanted to say, it was now time to make a decision and they were going to get back to you, is that right? |
| A. Yes. |
| 373. Q. You understood a decision would be made very shortly? |
| A. Yes. |
| 374. Q. You didn't say you wanted to do anything more in terms of presenting evidence, correct? |
| A. Yeah. |
| 375. Q. Okay. And that - - - |
| A. Well, we said if the outcome is not proper, we are going the next step. |
| 376. Q. No problem with what you intended to do in the future, all I am saying in fact your own adviser indicated that the reason for the rush was that there were time limits you had to deal with? |
| A. Yes, because you have 30 days. |
The Applicant's Argument
[33] The applicant argues that the procedure that was followed was inadequate, that it did not give him sufficient opportunity to meet the case against him; he was not allowed to call witnesses on his behalf; the investigators did not interview the individuals he had suggested they contact (Mr. Evans, Mr. Kenny); he was not given an opportunity to test, for example, by cross-examination, the evidence being given by others. In addition, it is argued that the decision-making process was biased because Mr. Thistle had made the initial decision of April 11, 1997, as well as the subsequent one of May 7, 1997. Lastly, it is argued that the penalty that was imposed was unreasonable - it was far too severe.
Analysis and Conclusion
[34] It is trite law that the precise requirements of fairness vary with the circumstances of the particular case. The applicable law is set out in many cases, a pertinent one being Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653:
| . . . . |
| The existence of a general duty to act fairly will depend on the consideration of three factors: (i) the nature of the decision to be made by the administrative body; (ii) the relationship existing between that body and the individual; and (iii) the effect of that decision on the individual's rights. ... |
[35] I agree with counsel for the applicant that the circumstances of this case are ones that engage the upper end of the scale: the decision in question is adjudicative, not a policy decision (it is one that is not unlike those made with respect to infractions of traffic rules of the road); the making of a decision requires some specialized knowledge in that it deals with airside vehicle operations, and has safety considerations as its overriding purpose, but these do not involve matters of a difficult technical nature; the relationship between the applicant and the decision-maker in one in which a duty of fairness exists; the interest of the applicant (loss of his employment) is substantial.
[36] I also agree with counsel that a more formalized system for dealing with airside vehicle operation infractions, such as that used at Toronto, Pearson Airport, has much to commend it. The question to be decided in this case, however, is whether, in all the circumstances, the procedure that was actually followed met the standards of fairness. In that regard the requirements are that the individual be made aware of the case against him and be given an adequate opportunity to respond thereto. This does not require a hearing that involves all the trappings of a court hearing. The requirements of procedural fairness can be met even absent a structured "hearing" (Knight, supra).
[37] In the present case, I fail to see how there can be any ground for the allegation that the procedure that was followed was unfair. Whatever defects may have existed on April 11, 1997, they were cured by the procedure that followed. The applicant was in no doubt about the case he had to meet; it was alleged that he had driven a vehicle in a manner that contravened the requirement that vehicle operators always give way to aircraft. The information that the authority had and on which the decision would be based was made available to him. He was given an opportunity to bring forward any evidence that he wished to present. The safety officer and legal counsel went even further, as did Mr. Thistle, they followed up leads that the applicant suggested would produce evidence in his favour, rather than requiring him to produce such on his own behalf.
[38] The applicant states in his affidavit:
| . . . . |
| ... I was not given an opportunity to present my case or respond to allegations made. In particular I was not given the opportunity to challenge the evidence of witnesses to the alleged incident and I was not given the opportunity to call evidence on my own behalf. |
| ... the Authority relied on previous allegations of driving infractions taken from the records of Transport Canada dating back to November 27, 1992. I was not given the opportunity to challenge or respond to those allegations or present evidence relating to them. |
| . . . . |
[39] These allegations are simply untrue. The applicant was given an opportunity to present whatever evidence he wished. He was given the opportunity to challenge the evidence of others. He had the opportunity to respond to the driving infraction record and present evidence relating thereto. Counsel for the applicant's argument seems to be that Mr. Thistle should have conducted a court type proceeding. This is not required.
[40] Also many of the applicant's arguments are simply inappropriate at this stage because of the failure to raise them earlier, e.g., the suggestion that he was denied the opportunity to call witnesses, when he had not earlier asked to do so; the assertion that he was denied the opportunity to cross-examine individuals when he had not asked to do so earlier (I am not suggesting that there was an obligation to allow him to do so, but merely noting that, in any event, he had not sought that opportunity earlier). The applicant had the opportunity to question and comment on the driving record that was on his file, as he had done in September 1993 with respect to the November 1992 "infraction". His allegations of bias also fall into this category. He did not object to Mr. Thistle rendering the second decision, before that decision was made; he cannot object now. Had the applicant objected at the relevant time, Mr. Thistle would have had an opportunity to decide whether to refer the final decision-making to another. By consenting, indeed, urging Mr. Thistle to make the decision, allegations of bias made now are devoid of merit.
[41] With respect to the argument that the penalty is too severe, it is trite law that courts when reviewing a tribunal's decision are not entitled to substitute their decision for that of the tribunal; a certain amount of deference is required. Mr. Thistle is responsible for safety at the airport. He concluded that in the interest of safety the applicant's AVOP would be cancelled. This is not a decision with which a court on review should interfere.
[42] At the hearing the respondent raised the issue of whether or not this Court, in any event, had jurisdiction. On February 1, 1997, the airport authority acquired responsibility for managing the airport. This was pursuant to the government's privatization policy. The airport authority is a non-share capital corporation incorporated under Part II of the Canada Corporations Act. It has a long term lease of the airport property from the federal government, and is subject in some respects to government regulation. Thus the jurisdictional question is whether or not the airport authority is a "federal board, commission or other tribunal" as defined in section 2 of the Federal Court Act. If it is not, then, this Court has no jurisdiction. While counsel for the respondent raised this issue, he also indicated, that the respondent would be content to have me decide on the merits of the application, rather than on the jurisdictional issue. Accordingly, I have done so.
[43] For the reasons given the application will be dismissed.
Judge
OTTAWA, ONTARIO
March 6, 1998