Source text

Sky Regional Airlines Inc. v. Trigonakis
Court (s) Database
Federal Court Decisions
Date
2022-02-02
Neutral citation
2021 FC 513
File numbers
T-616-20
Notes
A correction was made on February 7, 2022
Decision Content
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 1st, 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 3rd, 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 4th, 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 7th, 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 16th 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 20th, Ms. Zamat couriered a “without prejudice” letter to the Respondent, indicating that an appointment with Dr. Knipping had been made for March 23rd 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 30th, 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 10th, 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 7th, 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 17th, 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 18th, 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 21st. 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 29th.
[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 not complied with the contractual AMC notification provision. The factual issues regarding the failure to provide reasons do not appear 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 raised before the decision-maker for the first time on a judicial review. This principle is compounded by the fact that it is the Court that has raised the new issue.
[76] The Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at paras 22–26 [Alberta Teachers’ Association] established the ground rules in situations when a party raises a new issue in 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 review where it would be inappropriate to do so. It indicated that generally, this discretion will not be exercised in favour of an applicant on 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 the judicial review as:
(1) the legislature has entrusted the determination of the issue to the administrative tribunal; courts should respect the legislative choice of the tribunal as the first instance decision-maker by giving the tribunal the opportunity to deal with the issue 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 specialized functions or expertise, because when it does, the Court should be especially careful not to overlook the loss of the benefit of the 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 court the 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 being unreasonable for several reasons and erroneously unfair, the three concerns weighing against permitting a new issue to be raised in the judicial review described in Alberta Teachers’ Association do not arise. The only purpose of raising the new fairness issue is with 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 hearing than the 17 days previously required. The Respondent was self-represented. The Adjudicator ought to have reviewed the TOE. He failed to mention it in the analytical portion of his reasons. There are also concerns that the employer may have knowingly breached 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 respects throughout the Adjudicator’s reasons.
[83] CARs, s 602.02 stipulates

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Sky Regional Airlines Inc. v. Trigonakis Court (s) Database Federal Court Decisions Date 2022-02-02 Neutral citation 2021 FC 513 File numbers T-616-20 Notes A correction was made on February 7, 2022 Decision Content 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 1st, 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 3rd, 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 4th, 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 7th, 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 16th 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 20th, Ms. Zamat couriered a “without prejudice” letter to the Respondent, indicating that an appointment with Dr. Knipping had been made for March 23rd 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 30th, 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 10th, 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 7th, 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 17th, 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 18th, 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 21st. 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 29th. [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 not complied with the contractual AMC notification provision. The factual issues regarding the failure to provide reasons do not appear 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 raised before the decision-maker for the first time on a judicial review. This principle is compounded by the fact that it is the Court that has raised the new issue. [76] The Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at paras 22–26 [Alberta Teachers’ Association] established the ground rules in situations when a party raises a new issue in 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 review where it would be inappropriate to do so. It indicated that generally, this discretion will not be exercised in favour of an applicant on 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 the judicial review as: (1) the legislature has entrusted the determination of the issue to the administrative tribunal; courts should respect the legislative choice of the tribunal as the first instance decision-maker by giving the tribunal the opportunity to deal with the issue 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 specialized functions or expertise, because when it does, the Court should be especially careful not to overlook the loss of the benefit of the 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 court the 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 being unreasonable for several reasons and erroneously unfair, the three concerns weighing against permitting a new issue to be raised in the judicial review described in Alberta Teachers’ Association do not arise. The only purpose of raising the new fairness issue is with 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 hearing than the 17 days previously required. The Respondent was self-represented. The Adjudicator ought to have reviewed the TOE. He failed to mention it in the analytical portion of his reasons. There are also concerns that the employer may have knowingly breached 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 respects throughout the Adjudicator’s reasons. [83] CARs, s 602.02 stipulates

Sky Regional Airlines Inc. v. Trigonakis

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Full judgment (source text)

Klouvi c. Canada (Procureur général)

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Klouvi c. Canada (Procureur général)

Dunsmuir v New Brunswick

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Sky Regional Airlines Inc. v. Trigonakis

Source text

Full judgment (source text)

Klouvi c. Canada (Procureur général)

Related cases

Klouvi c. Canada (Procureur général)

Dunsmuir v New Brunswick

Exam & revision prep