Case summary – Davis and Canada

There has been an abject failure on the part of CAM and the AMRB to objectively consider the evidence and change their opinion accordingly as the facts changed.

2022 TATCE 67, para. 87.

Shaun Curtis Davis v. Canada (Minister of Transport), 2022 TATCE 67 (Review)

Keywords

aviation medical certificate — alcohol use disorder — pilot fitness — medical standards — administrative review — Transportation Appeal Tribunal of Canada — Civil Aviation Regulations — ICAO standards — restricted medical certificate — unfit assessment — addiction assessment — sobriety — recertification — administrative law — medical diagnosis

Decision maker

Dr. Thomas V. Davis, Member

Counsel

For the Minister: Alexandre Petterson
For the Applicant: Self-represented

Summary

The applicant, a commercial pilot, sought review of the Minister of Transport’s decision to refuse renewal of his unrestricted category 1 medical certificate following a 2016 incident involving alcohol consumption in Nigeria. The Tribunal referred the matter back to the Minister for reconsideration. The applicant had been denied boarding a commercial flight due to alcohol consumption, leading Transport Canada to assess him as unfit based on a diagnosis of alcohol use disorder. The central legal issue was whether the applicant had ceased to meet the medical requirements for an unrestricted medical certificate under the Canadian Aviation Regulations. The Tribunal found that multiple comprehensive assessments by qualified substance abuse specialists concluded the applicant did not meet the diagnostic criteria for alcohol use disorder, and the original diagnosis had been acknowledged as unsubstantiated by the diagnosing agency itself.

Legal issues

1. Whether the applicant ceased to meet the medical requirements for the issuance of an unrestricted category 1 medical certificate under paragraph 1.3(b) of CARs Standard 424.17(4).
2. Whether the applicant had an established medical history or clinical diagnosis of alcohol dependence or abuse.
3. Whether the Minister’s decision was reasonable given the medical evidence presented.

Decision

The Tribunal found that the applicant did not cease to meet the medical requirements for a medical certificate without restrictions, as the evidence demonstrated he did not have and did not in the past have an alcohol use disorder. The matter was referred back to the Minister for reconsideration.

Orders

Pursuant to subsection 7.1(7) of the Aeronautics Act, the Tribunal refers the matter back to the Minister of Transport for reconsideration of its decision to refuse to renew the applicant’s unrestricted medical certificate.

Facts

The applicant, Mr. Shaun Curtis Davis, is a 52-year-old commercial pilot qualified on helicopters and fixed-wing aircraft with over 8,000 flight hours. On June 1, 2016, while in Lagos, Nigeria, Mr. Davis was denied boarding a commercial flight after consuming alcohol in the airport lounge; a subsequent breath test reportedly showed a blood alcohol level of 0.18 g/dl. Transport Canada became aware of the incident and assessed him as unfit on January 11, 2017, based on a diagnosis of alcohol use disorder. Over the following three years, Mr. Davis underwent multiple assessments and treatments, attended Alcoholics Anonymous meetings, and submitted various medical reports. In October 2017, he provided false answers on his medical examination form regarding prior medical issues. In February 2018, Dr. McKibbon, an experienced substance abuse professional with aviation expertise, conducted a comprehensive evaluation and concluded Mr. Davis had alcohol intoxication without use disorder. The original diagnosing agency, TASC, later acknowledged its diagnosis was not substantiated by DSM-V criteria. Despite this evidence, the Aviation Medical Review Board continued to defer a favorable recommendation, citing skepticism about the assessments and concerns about Mr. Davis’s candor. In February 2020, Transport Canada issued a letter offering Mr. Davis a restricted category 1 medical certificate rather than renewing his unrestricted certificate.

Reasoning

The Tribunal analyzed whether the applicant met the medical requirements under CARs Standard 424.17(4), which excludes pilots with “alcohol or chemical dependence or abuse.” The Tribunal noted that the ICAO Manual of Civil Aviation Medicine requires a period of sobriety for those diagnosed with alcohol abuse or dependence, but this presupposes a valid diagnosis. The Tribunal found that three separate assessments by qualified substance abuse specialists in three different countries all concluded Mr. Davis did not meet the criteria for alcohol use disorder. The original TASC assessment had been acknowledged by its own clinical director as not meeting DSM-V diagnostic criteria. The Tribunal criticized the Aviation Medical Review Board for continuing to rely on the invalid original diagnosis despite new evidence, noting that the Board’s skepticism was not justified given the comprehensive nature of the subsequent assessments. The Tribunal also found that the alleged three DWI convictions in Nigeria were unsubstantiated, as Mr. Davis had never held a Nigerian driver’s license. While acknowledging Mr. Davis’s failure to truthfully answer questions on his 2017 medical examination form, the Tribunal found this did not justify maintaining a restriction based on an invalid diagnosis.

Citations

Canada (Citizenship and Immigration) v. Mahjoub, 2010 FC 1193.
Laboratoires Servier v. Apotex Inc., 2008 FC 321.
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.1(7).
Transportation Appeal Tribunal of Canada Act, S.C. 2002, c. 10, s. 15(4).
Canadian Aviation Regulations, SOR/96-433, Standard 424.17(4).
Canadian Aviation Regulations, SOR/96-433, Standard 424.04(1)(a).
Canadian Aviation Regulations, SOR/96-433, Standard 424.05(1).
International Civil Aviation Organization, Manual of Civil Aviation Medicine, Doc 8984, 5th ed. (Montreal: ICAO, 2011), sections 9.1.3, 9.12.15, 9.12.16.

Excerpts

“I find that Mr. Davis did not cease to meet the medical requirements for a medical certificate without restrictions as the evidence is that he does not now and did not in the past have an alcohol use disorder.” (para 88)

“There has been an abject failure on the part of CAM and the AMRB to objectively consider the evidence and change their opinion accordingly as the facts changed.” (para 87)

“Without a diagnosis of alcohol use disorder or dependence, CARs Standard 424.17(4), Medical Requirements Table, paragraph 1.3(b) does not apply nor do sections 6.3.2.2 and 9.12.15 of the ICAO manual.” (para 86)

“Dr. Dela Cruz’s Substance Use Assessment Report was the third assessment by three different substance abuse specialists in three different countries that came to the same conclusion: Mr. Davis does not and did not have an alcohol use disorder.” (para 84)

“The screening in 2016 was equally subjective and did not meet the criteria for diagnosis. The ‘abuse’ documented in 2016 was a single incident of being intoxicated while not on duty for flight operations.” (para 81)

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