A senior air traffic controller (“Hudgin”) succeeded in obtaining an order overturning the decision of the Appeal Panel of the Civil Aviation Tribunal which had confirmed a penalty against Hudgin for giving instructions contrary to the applicable standards governing the separation of aircraft on a runway. The court held that Hudgin was not in breach of his statutory duty as the improper direction at issue was actually made by a trainee under the supervision of Hudgin.

Administrative law – Aeronautics – Air traffic controllers – Supervision of trainee – Compliance with legislation – Judicial review – Standard of review – Unreasonableness

Hudgin v. Canada (Minister of Transport), [2002] F.C.J. No. 369, Federal Court of Appeal, March 14, 2002, Décary, Sexton and Evans JJ.A.

On December 16, 1997, an air traffic controller-trainee at Dorval Airport gave an instruction to an aircraft authorizing the pilot to cross runway 28. Shortly afterwards, the same trainee authorized another aircraft to take off from the same runway. No accident occurred because the pilot of the first aircraft could see the other aircraft taking off and did not enter the runway. The trainee was under the supervision of Hudgin, the air traffic controller on duty. The question to be decided was whether a supervising air traffic controller can be found to have breached a regulation prohibiting the use of instructions contrary to the applicable standards governing the separation of aircraft on a runway, when the instruction was in fact given by the trainee. This case is an appeal by Hudgin from a decision of the Trial Division which had dismissed an application for judicial review of the decision of the Appeal Panel of the Civil Aviation Tribunal. The Appeal Panel had upheld a decision of the Civil Aviation Tribunal confirming a penalty of $250.00 imposed under s. 7.7 of the Aeronautics Act, R.S.C. 1985 c. A-2, for issuing an air traffic control instruction in breach of the relevant standard.

At trial, the judge had held that the standard of review applicable to the Appeal Panel’s decision is the “middle of the spectrum” standard of unreasonableness. This was noted to mean that the Appeal Panel will have erred in law if, on an application for judicial review, its decision was held to be clearly wrong or unable to withstand a “somewhat probing” examination. Counsel at the hearing of this appeal did not take issue with this standard, and the court proceeded on the basis that the applicable standard was that of unreasonableness.

The appeal turned on the interpretation of s. 801.01(2) of the Canadian Aviation Regulations, S.O.R. 96/433 which provided that “no air traffic controller shall issue an air traffic control clearance or an air traffic control instruction, except in accordance with the Canadian Domestic Air Traffic Control Separation Standards”. It was not disputed by the parties that the instruction given was not in accordance with the separation standards. However, the Court of Appeal held that the Appeal Panel’s decision was unreasonable and therefore erroneous in law, because the only air traffic control instruction was given by another person, namely the trainee.

Counsel for the Minister defended the Tribunal’s decision on the ground that Hudgin controlled the activities of the trainee and was responsible for those actions and was under a duty to monitor them. The court did not accept this argument and noted that there was nothing in the regulation, or in any more general legal principle, whereby the action of one employee can be deemed to be that of another. The court stated that there seemed to be an unfortunate gap in the regulations but this gap was not relevant. Even Hudgin’s admissions that he was “responsible” for the trainee were immaterial in a proceeding to determine if he was in breach of a statutory duty not to issue an improper instruction. In the result, the court allowed Hudgin’s appeal and set aside the order of the Trial Division and the decision of the Appeal Panel of the Civil Aviation Tribunal. The matter was then remitted to the Appeal Panel with a direction to allow the appeal from the Civil Aviation Tribunal and to disaffirm the notice penalty of $250.00 assessed by the Minister against Hudgin.

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