Decisions

CAT File No. Q-1878-33
MoT File No. N5504-P-333384-32248

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Christian Albert, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7, 8.1(3)
Canadian Aviation Regulations, SOR/96-433, s. 602.14(2)(b), 605.94(1)

Low flying, Entries in logbooks


Review Determination
Pierre J. Beauchamp


Decision: January 20, 2000

TRANSLATION

I conclude that the Minister has proven, by a preponderance of probabilities, the three counts of the alleged offences and uphold the decision by the Minister to assess the penalties of $250 for count I, $250 for count II and $100 for count III, respectively. The total penalty of $600 is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within 15 days following service of this determination.

A review hearing on the above matter was held on October 19, 1999 at 11:00 hours in room 1.13 at the Palais de Justice, in Alma, Quebec.

BACKGROUND

The Respondent, Mr. Christian Albert, is owner of a small Sportsman 2+2 seaplane, registered as C-FFDA, that he operates for recreational purposes.

He is accused of having, on two occasions, the 4th and 6th of August, 1998, flown over the cruiser La Tournée at a low altitude, and also of not having entered the flight of August 6, 1998 in the journey log book for his aircraft.

For this reason, the Minister sent a Notice of Assessment of Monetary Penalty to the Respondent which reads in part as follows:

NOTICE OF ASSESSMENT OF MONETARY PENALTY

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened sections 602.14(2)(b) and 605.94(1) of the Canadian Aviation Regulations ...

On August 4, 1998, at approximately 18:55 hours local time, you flew an aircraft, registered as C-FFDA, less than 500 feet from a vessel navigating the Grande Décharge river near Des Jean bay, contrary to section 602.14(2)(b) of the Canadian Aviation Regulations.

PENALTY: $250

On August 6, 1998, at approximately 15:15 hours local time, you flew aircraft registered as C-FFDA less than 500 feet from a vessel navigating the Grande Décharge river near Pointe Wilson, contrary to section 602.14(2)(b) of the Canadian Aviation Regulations.

PENALTY: $250

The flight of August 6, 1998, with aircraft registered as C-FFDA, was not entered in the aircraft journey log book of the aircraft, contrary to section 605.94(1) of the Canadian Aviation Regulations:

PENALTY: $100

EVIDENCE

COUNT I

Minister's Evidence

The representative of the Minister of Transport, Mr. Tamborriello, called two witnesses. They were Mr. Normand Dupuis, captain of the vessel La Tournée, and his first officer, Mr. Michel Doré.

Mr. Dupuis stated that on August 4, 1998, he was at his post on board the vessel that conducts tours for tourists on Lac St. Jean from the Grande-Décharge river. It is a vessel of 100 feet propelled by turbines and able to carry 200 passengers.

On that day, there were 84 passengers and six crew members on board. He was heading west, towards Lac St. Jean, when a white single-engine aircraft with blue lines flew over his vessel at low altitude. He noticed the registration, immediately took a GPS position of the vessel during the event and entered the information in his personal agenda. It was 18:55 hours. He testified that the aircraft arrived from the back of the vessel heading towards the front, passed on the port side at approximately 35 feet in height in relation to the upper deck of the boat, therefore approximately 50 feet in relation to the water, and a distance of approximately 150 feet from the vessel. The aircraft did not land or take off, but simply climbed again after passing. The entry of "August 4" on the topographical map (Exhibit D-3), matches their position when the aircraft flew over. He sent a letter to Mr. Tamborriello dated August 11, 1998 (Exhibit D-2) relating these events.

Under cross-examination he added that his first officer, Mr. Doré, also observed the event and that he was the one who entered the information in the vessel's journey log book when they returned to the pier (Exhibit D-1).

Mr. Doré, testified that on August 4, 1998, he was acting as first officer on board the La Tournée. The essential points in his testimony corroborate the testimony of Mr. Dupuis regarding the low-altitude pass by the aircraft, its identification by its call letters which he entered in the journey log book after discussing their position and the altitude and proximity of the aircraft during the pass with the captain.

Under cross-examination, he believed the event was entered immediately after consulting with his captain. He did not remember whether the aircraft had wheels or floats.

Mr. Tamborriello testified next in order to file certain exhibits into the record, including his letter of May 20, 1999 to Mr. Christian Albert (Exhibit D-4), the response to the letter (Exhibit D-5) and an extract from the aircraft journey log book of aircraft C-FFDA (Exhibit D-6).

This was the Minister's evidence.

Respondent's Evidence

Mr. Albert called Ms. Johanne Côté as the first witness.

She has been a friend of the Respondent for the last seven years. She confirmed that she remembered their flight on August 4, 1998 because this was a pleasure flight to a friend's cottage located southeast of Alma, at Baie de Cascouia.[1] She remembered the trip very well, she said, because it was the day after she hurried back to work. This was one of her favourite destinations that year, even though they had only been there three times that summer. With complete detail, she stated the time of their departure (approximately twenty to five), the time to get home from work, change, go to the grocery store to prepare their picnic supper, their arrival at the destination, the absence of their friends, their supper while they waited ... She said that they waited for them to arrive and that at 6:30 p.m., they still hadn't arrived. "We thought they weren't coming. We had arrived at 5:00 p.m., a 20-minute flight, we decided to leave ...". She added that they waited until 8:20 p.m. and that they went to eat a pizza at a friend's restaurant (Chez Félix) in Alma. "We returned at about 8:30 p.m.".

Under cross-examination, Ms. Côté added that she works as a secretary from 8:00 a.m. to 4:00 p.m., that August 3rd was a Monday, and that, for the August 4th flight, they had taken off from Villa St. Louis and flew directly towards the southeast and "we flew right over the property of a friend, he usually doesn't want us to go that way...". They swam two or three times, ate part of their supper and took off at about eight fifteen. The returned directly to their base, a flight of fifteen minutes.

She confirmed that she had seen the La Tournée boat before, but not on that day.

Mr. Albert testified next. He stated that during that summer, they went together to Baie de Cascouia three times, that he never went alone, and that these three outings were entered in the aircraft journey log (logbook). He talked about the outing on July 15-16 when they slept at that location and took his friends for a tour by plane. He insisted that all his flying time is entered in the logbook.

Under cross-examination, he explained that the "local" note in the aircraft journey log book, in the July 15th entry (D-6), designates his base of operations and that the entry of 15 minutes "air time" for the second entry dated 16-07 (July 16) and local, was an entry error (column 4 "Up" indicates 8:20 and column 5 "touchdown" indicates 8:25).

There was another error in the entries for August 4th for the flights from the base of operations in Alma (local) to Baie de Cascouia and the return flight. An arrow indicates that the data is reversed for the departure and arrival times (columns 4 and 5) only. The time in the air (:10/:20, column 6) and flight time (:25/:25, column 6) are correct when the departure and arrival times are reversed respectively. In fact, the in air time difference is for the time to warm up the engine as required for the first take-off.

When questioned by Mr. Tamborriello about the exact time he entered the information into the logbook, he answered that he writes the data on a piece of paper in the aircraft and transcribes it into the logbook afterwards. It was only in May 1999, after their telephone conversation about the incidents mentioned above, that he examined his aircraft journey log book and noticed the errors in departure and arrival times. That was when he corrected everything by adding an arrow. Furthermore, he also noticed at that time that he had made a mistake when he entered the departure time from their base of operations (local) on August 4th (4-08) as 08:30 and arrival at 08:50, for 8:30 and 8:50 p.m. He then corrected the entry and wrote the number 20 over the entry for 20:30 and 20:50, the time of the return flight.

He added, following the questions of the Minister's representative, that he does not have a night flight endorsement, but that on August 4th, it was not yet night when he returned.

Question: "8:30—is this sunset?"

Answer: "8:30 is sunset, in the half hour!"

Also, he knows the boat La Tournée, but he never flew over it within 500 feet.

Finally questioned again about the flight time required for completing the Alma-Baie de Cascouia flight, he admitted that the average time is 15 minutes. He explained that the time difference for that day was due to the wind factor. In this case, it was 10 minutes to go and 20 minutes to return. However, Mr. Tamborriello emphasized that at an average speed of 90 mph, that of his aircraft, the time required to cover the distance of 12 miles between these two points, should be between 8 and 9 minutes (1.5 miles per minute). Mr. Albert retorted that he makes this flight at a cruising altitude of 2,000 to 2,500 feet, and that the time required to reach this altitude must be taken into account. Furthermore, the wind factor must be taken into account. On that day, there was a strong down wind for the flight out and a strong head wind for the return flight.

Before finishing with the witness, after the cross-examination of the Minister's representative, the undersigned asked the Respondent a question regarding the entry for August 4th. He asked, "the problem is that it seems 18:30 was written before the corrections were made?". "It does look that way", answered Mr. Albert.

After the cross-examination of the Respondent, Mr. Tamborriello was permitted to present rebuttal evidence regarding the winds that affected the immediate Alma area on that day. For this purpose, he recalled vessel captain, Mr. Dupuis, who stated that he had taken several meteorological courses to obtain his captain's certificate, that they determine that status of the ocean and winds for every outing, and that the data is entered in the journey log book. Referring to Exhibit D-1, he testified that on August 4th, both the ocean and the wind was calm at 14:00 hours and at 18:30 hours.

The cross-examination of Mr. Dupuis by Mr. Albert established that on July 15th, the wind was also calm and that on July 16th (Exhibit D-7), the wind was also very light (at 14:00 hours, wind from the north force 1, i.e., 1 to 3 knots, and at 18:35 hours, calm winds). Mr. Albert emphasized that the entry in his logbook referred to a flight of 15 minutes between Alma and Baie de Cascouia on that day.

Mr. Tamborriello's request for an adjournment to allow him to complete his evidence by adding meteorological data for the relevant dates would be withdrawn after discussion and the Minister's evidence was completed for the first count.

COUNT II

Minister's Evidence

The Minister's evidence is more or less the same for the second count.

The vessel's captain, Mr. Dupuis, testified again and stated that on August 6, 1998, he was operating the same boat for a similar tour, at 14:00 hours that day. On their return, when they were entering Lac St. Jean at Pointe Wilson alongside Île Beemer, they noticed that an aircraft was approaching them from the rear at 75 feet in distance and 25 feet in height, lower than the masts. The aircraft passed the vessel towards the front and flew over two other vessels in front of them. The aircraft then climbed again and left. The aircraft was "practically at the height of the wheelhouse and we could easily see its call letters! I was with the first officer and the helmsman. I noted the time and GPS position which my first officer entered in the logbook".

Mr. Dupuis added that the GPS entered in the logbook is actually in error in terms of the longitude. He explained that this was either a navigational instrument error or that he made an error in transcribing the information. He was however sure of the actual position of the vessel during the event, "within 100 feet, we were right at the middle of île Beemer, on the north side, just past Pointe Wilson". The aircraft disappeared into the southeast.

Under cross-examination, he indicated that the aircraft was heading in the same direction as his boat. Asked if he saw it for a long time, he explained that he first noticed it a bit south of île Morel, at îles à Tremblay, towards the east (he entered the aircraft's route by drawing a line on the card (D-3)), and the aircraft returned from the back of the vessel. "I said to my first officer: I hope this won't be another fly over!".

The first officer, Mr. Doré, testified next. He corroborated the testimony of the captain of the vessel, Mr. Dupuis, and confirmed the position of the vessel, near Pointe Taillon and île Beemer by an entry on the card (Exhibit D-9). What attracted his attention was the aircraft's pass that was too close and too low. The entry in the logbook for August 6th (Exhibit D-8) was his own. He also stated that the aircraft passed them on the port side and that he seemed to drop lower, "I didn't understand the manoeuvre". The aircraft did not land (on the water), and flew over other boats that were in front of us, and then, Mr. Doré did not follow its course because the channel is narrow, and he must pay attention to manoeuvre in this narrow location.

Under cross-examination, Mr. Albert asked him about the identification of the aircraft and specifically about the call letters. Did he see the letters on the body of the aircraft or on the tail? The witness first confirmed that they were on the rudder, then when pressed about this point, he confessed that he wasn't sure, "well, it has been a year since then". Mr. Albert referred to two photos of similar aircraft and indicated to the witness that the identification letters are on the body of the aircraft, not on the tail. Mr. Doré replied that he recognized the ends of the curved wings in one of the photos (A-1A) which are different, according to him, from those in the second photo (A-2). In fact, he had clearly noticed this curve because the aircraft was in front of them "and the shape was a _". Finally, he did not notice if the aircraft was equipped with floats because he is not an expert. What was important to him was the colour of the aircraft and the "call" letters. As for the distance between the aircraft and the vessel, the aircraft was closer than those in the photos.

The evidence was completed by Mr. Tamborriello who added Exhibits D-4, D-5 and D-6 into the record for this count.

Respondent's Evidence

Mr. Albert testified and, referring to Exhibit D-6, he indicated that there was no entry for August 6th. He stated that at the time, he was working at night, that he could have flown, but that if he had, he would have entered it into his aircraft journey log book. "Since I didn't enter it, I must not have flown!"

In response to a question from the undersigned regarding the entries of 5-08 and 7-08 (D-6), he indicated that for the flight of August 5th to Pointe à Taillon, he normally goes there to clean the floats on his aircraft, which he must have done, and for August 7th, he went fishing with a friend and returned on August 9th.

COUNT III

Minister's Evidence

Mr. Tamborriello added at this point all the evidence presented for the second count, adding that the aircraft journey log book (D-6) proved that the entry for the flight observed by the witnesses had not been made.

Respondent's Evidence

In defence, Mr. Albert reiterated the evidence submitted for the second count.

THE LAW

Section 7.7 of the Aeronautics Act stipulates the following:

7.7 (1) Where the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister shall notify the person of the allegations against the person in such form as the Governor in Council may by regulation prescribe, specifying in the notice, in addition to any other information that may be so prescribed,

(a) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with such guidelines as the Minister may make for the purpose, to be the amount that must be paid to the Minister by the person as the penalty for the contravention in the event that the person does not wish to appear before a member of the Tribunal to make representations in respect of the allegations; and

(b) the time, being not less than thirty days after the date the notice is served or sent, at or before which and the place at which the amount is required to be paid in the event referred to in paragraph (a).

(2) A notice under subsection (1) shall be served personally or by ordinary mail sent to the latest known address of the person to whom the notice relates.

Paragraph 602.14(2)(b) of the Canadian Aviation Regulations (CARs) stipulates the following:

602.14 (1) For the purposes of this section and section 602.15, an aircraft shall be deemed to be operated over a built-up area or over an open-air assembly of persons where that built-up area or open-air assembly of persons is within a horizontal distance of

(a) 500 feet from a helicopter or balloon; or

(b) 2,000 feet from an aircraft other than a helicopter or a balloon.

(2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft

(a) over a built-up area or over an open-air assembly of persons unless the aircraft is operated at an altitude from which, in the event of an emergency necessitating an immediate landing, it would be possible to land the aircraft without creating a hazard to persons or property on the surface, and, in any case, at an altitude that is not lower than

(i) for aeroplanes, 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane,

(ii) for balloons, 500 feet above the highest obstacle located within a horizontal distance of 500 feet from the balloon, or

(iii) for an aircraft other than an aeroplane or a balloon, 1,000 feet above the highest obstacle located within a horizontal distance of 500 feet from the aircraft; and

(b) in circumstances other than those referred to in paragraph (a), at a distance less than 500 feet from any person, vessel, vehicle or structure.

Finally, subsection 605.94(1) stipulates that:

605.94 (1) The particulars set out in column I of an item in Schedule I to this Division shall be recorded in the journey log at the time set out in column II of the item and by the person responsible for making entries set out in column III of that item.

OBSERVATIONS

Two preliminary points were raised prior to verbal arguments.

Mr. Tamborriello requested that the arguments be submitted in writing. For his part, Mr. Albert preferred to proceed verbally. After discussion, it was decided to proceed immediately with viva voce arguments and, if required, the parties would be entitled to submit additional arguments in writing.

Finally, a joint admission was made about a telephone conversation between Mr. Tamborriello and Mr. Albert last July regarding the complaint made by Messrs. Dupuis and Doré in their letter of August 11, 1998 (D-2). This letter also indicated a fly over on that day. Following this telephone conversation, the Respondent sent a copy of his timesheets to Mr. Tamborriello to establish that he was working on that day.

ARGUMENTS

Minister of Transport — Applicant

Mr. Tamborriello first filed a copy of the relevant CARs sections which were added to the record as Exhibits D-10 to D-13.

He submitted that the Minister is relieved of the burden of proof on count I since he had established that there had been a flight by the aircraft registered as C-FFDA on August 4, 1998, that the Respondent admitted he flew on that day and furthermore, stated that he is the only one who flies his aircraft. The witnesses stated they had seen an aircraft, registered as C-FDDA, that had passed over their vessel at a distance of less than 500 feet. He added that section 602.14 provides an exemption for authorized cases, such as taking off or landing. It is clear according to the version from the witnesses that this was not the case. While Mr. Albert claims that his flight on that day was in the distinct area in which the vessel La Tournée was also located, the data in the aircraft journey log book must be taken into account for said aircraft. The entries show a flight time of 10 minutes on the way out and 20 minutes for the return. He pleaded that the average flight time for this journey under calm wind conditions as on that day, should have been approximately 10 minutes.

Furthermore, it seems that Mr. Albert modified the entries in his aircraft journey log book after their telephone conversation in May 1999, and, he submitted, we can clearly see the number 18 instead of 20 under the corrections. This matches the time the aircraft had been observed by the witnesses.

Regarding the second count, he reiterated the same arguments, adding that the only defence presented by the Respondent was his confirmation that he did not fly on that day (August 6th), the whole without corroboration, while we do have the testimony of two witnesses who have no interest in creating false facts.

On the third count, he submitted that the Minister had proven the essential elements of the offence in that he established that there was a flight and that no corresponding entry, as required by the regulations, was made in the aircraft journey log book.

Finally, he sees aggravating circumstances in the behaviour of the Respondent at the Tribunal (who denied the accusations) and since he is an experienced pilot who should be a good example rather than display risky behaviour, he asked us to take these factors into account in evaluating the penalty assessed.

Mr. Albert — Respondent

The Respondent's arguments were very brief. On the first count, he suggested that we must take into account the time elapsed on the water before take-off which would explain the time difference on earlier flights between these two points. Regarding the issue of the time entered in the aircraft journey log book, which was possibly 18:30-18:50, he reminded us that the evidence shows that the fly over occurred at 18:55.

In addition, referring to the letter of complaint (D-2) from Messrs. Dupuis and Doré, he pleaded that this letter relates to three fly overs by the same aircraft. Since the allegation of a fly over was not made out, he believes, by the Minister regarding August 11th, since he could not have flown over on August 4th, as shown by his witness, and since he confirms he did not fly his aircraft on August 6th, there must definitely be a mistake in the identification of the aircraft. He confirmed that the method used by witnesses Dupuis and Doré for taking down the data was good; "I don't argue with this", but submitted that having seen the same aircraft on three occasions, there must have been confusion with the call letters.

DISCUSSION

Counts I and II

Transport Canada accused the Respondent for having been on board aircraft C-FFDA, flown over the vessel La Tournée, on two occasions, without a valid reason, on August 4 and 6, 1998, at a distance of less than 500 feet, in contravention of paragraph 602.14(2)(b) of the CARs.

The ownership of aircraft C-FFDA was not disputed and it was established that the Respondent is the owner. Further, he confirmed that he is the only one who flies the aircraft.

To establish the Respondent's guilt on these counts, the Minister had to establish all the elements of the accusations by a preponderance of evidence. In other words, that the Respondent had, on the dates mentioned, used said aircraft, near the vessel La Tournée, at a distance of less than 500 feet, while not taking off, approaching or landing.

Regarding the first two alleged offences, we have two diametrically opposed versions before us.

On one hand, we have testimony from two officers from the aforementioned vessel. They testified clearly and plainly that they had observed a small aircraft, mostly white with blue lines, that flew over at low altitude, at the height of the masts in one case, and at the height of the wheelhouse in the other case, and on both occasions, at a distance of less than 500 feet.

While their version seems identical (they use the same terms, both say they are able to evaluate distance due to their training and work in which accurate evaluation of distances is essential), we can attribute these similarities to the fact that they probably observed the same events and therefore described their experiences using similar terms. Furthermore, it is evident that they must have reminded each other of the circumstances before the hearing, if only to prepare for their testimony, considering that these events occurred more than a year before.

It however remains that their version of the events seems entirely credible, objective and demonstrates they did not take sides. Both the captain and first officer testified clearly, without evasion and did not stray from the main points of the events. Their memory of said passes by the aircraft, assisted by the notes entered in the logbook and personal journal of the captain during the incidents, is precise and concurring. There does not appear to be collusion between them and the evidence we have, both direct and raised under cross-examination by the Respondent, does not taint their credibility. On the contrary, the Respondent confessed during arguments that he did not question their methods of gathering information. He said their methods were good.

Furthermore, this version is not undermined by the cross-examination of the Respondent. In fact, the questions asked by the Respondent, to both the captain and the first officer, only brought fuel to the fire. Mr. Dupuis testified (under count II) that he followed the route of the aircraft for a good minute when he was south of their position ("south of Île Morel, at Îles à Tremblay"), and that he returned to them from the rear. For his part, Mr. Doré recognized the specific curve of the wing of aircraft C-FFDA from the photo (A-1A) presented by the Respondent which he had noticed when the aircraft passed, and which he had not mentioned earlier.

The fact that he confessed he could not remember whether the aircraft was equipped with floats does not undermine his testimony, but instead shows the honesty of a witness who does not appear to want to invent or add anything, sticking only to the facts he clearly remembers. Similarly, the fact that he thought the identification letters of the aircraft were on the tail (rudder) of the aircraft instead of at the back of the body of the aircraft (A-1A) was an error that is easy for an uninitiated observer to make, as opposed to an unreliable witness.

On the other hand, this version of the events must be examined, in light of the corroborated testimony (in relation to count I) provided by the Respondent and his witness, his friend, Ms. Côté.

In fact, the Respondent denied having flown his aircraft on August 4th (count I) in proximity to the vessel La Tournée. This was the extent of his defence. Regarding the flight, it was his companion, Ms. Côté, who made the statement. As mentioned earlier, her testimony was very colourful and contained many precise details. Taken alone, this testimony provides a version of the events that occurred on that day that clearly contradict that which was confirmed by the witnesses (the boaters) who stated they saw and identified the Respondent's aircraft on that day.

Does Ms. Côté's testimony withstand analysis? She stated, both during direct testimony and under cross-examination, that they went to Baie des Cascouilla at the end of the afternoon on August 4th, that they swam there (three times) and, in the absence of their friends, ate part of their supper. There were many details, "we returned and went to eat a pizza at Chez Félix", she said, "a fifteen-minute flight".

However, her version of the time of return is less clear. In fact, she testified that they waited until 18:30, and then "we thought they weren't coming", we decided to leave, she stated. Then why did they wait until 20:30 to take off? Nothing on this subject.

In fact, her version would have been plausible if it had not been for the entries for this flight in the aircraft journey log book of C-FFDA (D-6), and the much less clear testimony of the Respondent.

In fact, a very casual examination of the first entry in said aircraft journey log book, on line 4-08 Baie Cascouilla, which required no expertise, revealed digits 1 and 8 in columns 4 and 5. This indicates 18:30 and 18:50 as take-off and landing times. These times were corrected much later to read 20:30 and 20:50, according to the testimony of the Respondent. His version was that the first times entered were 8:30 and 8:50, for 8:30 and 8:50 p.m. and that he had made corrections after his conversation with Mr. Tamborriello, in May 1999, regarding the complaint made by Messrs. Dupuis and Doré. Then how can digit 1, that appeared very clearly under digit 2, be explained? In addition, when questioned about this by the undersigned, Mr. Albert lost his cool a bit (in fact, he turned red), hesitated, then confessed that it appeared the times that had been corrected were 18:30 and 18:50. Is it necessary to bring it up again that the Minister's witnesses testified that the time of the fly over on August 4th was 18:55?

In addition, during his testimony, Mr. Albert did his utmost to contradict overwhelming evidence, and we cannot blame him. We could say he was skirting the issue. In fact, when questioned by Mr. Tamborriello about the reason for the difference in the flight time between going and returning, it was "because there was a strong down wind on the way out and a strong head wind when we returned". When we established that the winds were light on that day, he said the time for climbing to the cruising altitude of 2,000 to 2,500 feet had to be taken into consideration.

To summarize, for count I, the Respondent's defence was based on the testimony of his friend, Ms. Côté, who told us about a flight providing many details, but who, when faced with the fateful issue of the time of the fly over, did not agree with the first entries made in the aircraft journey log book which were 18:30 and 18:50, as the take-off time for Baie de Cascouilla and arrival time at Alma.

A tribunal must begin its evaluation of testimony with the presumption the witness, who has sworn to tell the truth, will do so. However, it is possible that even though believing they are telling the truth, a witness who appears completely credible may be mistaken. In practice, as has been confirmed in a judgement from the B.C. Court of Appeal, we must apply the following test in evaluating the evidence provided by the Respondent, and specifically, the testimony of Ms. Côté, who directly contradicts the version provided by the prosecution:

The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.[2]

In light of the foregoing, we believe that Ms. Côté's testimony, while truthful in many regards, is incorrect on a key point – the time of take-off from Baie de Casouilla and of the return to Alma.

As instructed by Sopinka and Lederman: [3]

Absent extenuating circumstances, the testimony of disinterested witnesses should prevail over that of persons who are or may be interested in the result. The court, however, is not to disbelieve or attribute error to the evidence of a witness solely because he is interested but must, instead, examine such evidence with reference to the facts of the case and other relevant factors. One judge has put it this way:

'... when the evidence of an important fact is contradictory ... the Court must weigh the motives of the witnesses, their relationship or friendship with the parties, their attitude and demeanour in the box, the way in which they gave evidence, the probability of the facts sworn to, and come to a conclusion regarding the version which should be taken as the true one ...' [emphasis added]

Consequently, considering the corresponding entries in the aircraft journey log book, the explanations provided by the Respondent during his testimony, and the version of events provided by Messrs. Dupuis and Doré, we cannot give the value and weight to this testimony desired by the Respondent.

Regarding the Respondent's testimony under count I, we dismiss it as well, applying the same criteria as mentioned above. His testimony is full of contradictions and explanations that are more or less farfetched on the subject of the duration of the flight and more specifically about the entries in the aircraft journey log book for the take-off and landing times for the return flight on August 4th, and do not withstand analysis when compared to all of the evidence provided.

There are enough elements to make it impossible to convince an objective person that by preponderance of the evidence, the version of the Respondent is the most representative of the events as they actually occurred. It is logical to say that "when faced with two contradictory pieces of evidence, the tribunal must appreciate and attempt to determine, in light of all of the circumstances, which of the two probably reveals the truth".[4]

Under the circumstances, we cannot accept the version provided by Mr. Albert and Ms. Côté and are satisfied that the Minister has proven, by a preponderance of the evidence, the essential elements of the offence charged in count I.

Regarding the second count, again, we cannot accept the Respondent's version.

The Minister's evidence is similar to that produced under the first count and provided by the same witnesses. The comments mentioned above regarding appreciation of this evidence also apply to this count.

It is helpful to remember that it is well established in law that a judge, when evaluating testimony provided by a witness, is not required to accept or reject the entire testimony. A judge may accept a portion of the testimony and reject the rest.[5] However, it remains that the determining criteria regarding the credibility of a witness is the similarity of the testimony with a preponderance of probabilities that a practical and well-informed person would recognize under the same conditions.[6]

The Respondent's evidence, when compared to the Minister's evidence on this count, is limited to a reference in the aircraft journey log book: "Since I did not make an entry, I must not have flown". No corroboration was made, neither was there an explanation or plausible proof offered to contradict the positive confirmation of the fly over, on this date, by witnesses Dupuis and Doré, as well as the recorded evidence (D-8) submitted.

The Respondent simply submitted, for his defence, that since we did not charge him based on the information provided by the same witnesses regarding another fly over on August 11, 1998, on presentation of his timesheets to show he was at work on that day, there must have been an error in the identification of his aircraft for the three occasions mentioned in the letter of complaint (D-2), dated the same date.

As far as we are concerned, we do not believe the Tribunal must make the inference suggested by the Respondent for this fly over as suggested. In any event, we are satisfied with the accurate and consistent evidence which is not really contradicted, for the events mentioned earlier under the second count, and uphold the decision of the Minister to assess a penalty for the fly over of August 6, 1998, in contravention of paragraph 602.14(2)(b) of the CARs.

Count III

Finally, as a direct consequence of our conclusion of guilt of the Respondent under count II which refers to an illegal fly over on August 6, 1998, and therefore appropriately of a "flight", and to the evidence provided by the Minister's representative regarding the absence of a corresponding entry of this flight in the aircraft journey log book (D-6), we also uphold the decision of the Minister on this count.

The Penalty

The penalties assessed for each count are clearly within the guidelines proposed in the Aeronautics Act for offences under the designated provisions and we do not see a need to intervene.

DETERMINATION

I conclude that the Minister has proven, by a preponderance of probabilities, the offences charged under the three counts and uphold the decision of the Minister to assess respective penalties of:

Count I: $250
Count II: $250
Count III: $100

Pierre J. Beauchamp
Member
Civil Aviation Tribunal


[1] The witnesses spoke of Baie de Cascouia or des Cascouilla without making a distinction.

[2] Faryna v. Chorny (1951) 4 W.W.R. (N.S.) 171.

[3] J. Sopinka and S.N. Lederman, The Law of Evidence in Civil Cases (Toronto: Butterworths, 1974) pp. 530-531.

[4] Bell Canada v. Hallé [1989] A.C.F. no. 555, Justice Pratte.

[5] See Sopinka and Lederman, op. cit. note 2, p. 529: "When a witness has been discredited on cross-examination as to the truth of a fact, the court may still give credence to the testimony of the witness in relation to other facts ... The Supreme Court of Canada ... held that ... (a) judge had misdirected the jury when he informed them that a witness who had been discredited as to part of his testimony was not to be believed at all."

[6] R.E. Phillips et al v. Ford Motor Co. of Canada Ltd. (1971) 18 D.L.R. (3rd) 641.


Appeal decision
Faye H. Smith, Michel Larose, Suzanne Racine


Decision: June 2, 2000

TRANSLATION

The appeal is dismissed. The appeal panel confirms the decision of the Minister of Transport that the appellant contravened two counts of paragraph 602.14(2)(b) of the Canadian Aviation Regulations and one count of subsection 605.94(1) and upholds the Minister's decision to assess monetary penalties of $250 for count I, $250 for count II, and $100 for count III. The total penalty of $600, payable to the Receiver General of Canada, is to be sent to the Civil Aviation Tribunal within 15 days of the receipt of this decision.

An appeal hearing on the above matter was held before three designated members of the Tribunal on Friday, May 19, 2000, at 09:30 hours at the Court House in Alma, Quebec.

BACKGROUND

Mr. Albert is the owner of a small seaplane of the 2+2 sportsman type. The Minister of Transport charged Mr. Albert with having flown at low altitude, on two occasions, August 4 and 6, 1998, over the vessel La Tournée which was making sightseeing cruises on Lac St-Jean and Rivière Grande-Décharge, and with failing to record the flight of August 6, 1998, in his logbook.

Subsequent to these offences, the Minister of Transport assessed a total monetary penalty of $600 against Mr. Albert on July 22, 1999.

As the penalty was not paid within the prescribed time, a review hearing was held October 19, 1999, in Alma before Mr. Pierre Beauchamp, hearing officer.

Mr. Albert is appealing Mr. Beauchamp's determination rendered January 20, 2000, which confirmed the Minister's decision that the respondent had contravened, two counts of paragraph 602.14(2)(b) and, a third count of subsection 605.94(1) of the Canadian Aviation Regulations (CARs). The determination upheld the monetary penalties of $250 for count I, $250 for count II, and $100 for count III, for a total penalty of $600.

GROUNDS FOR APPEAL

Mr. Albert cited the following grounds for appeal in his letter of February 9, 2000:

  1. The member erred in not accepting the testimony of Mrs. Côté.
  2. The appellant can clearly provide details surrounding the corrections made in his logbook of the notations of August 4, 1998.
  3. The appellant had difficulty following the proceedings at the review hearing.
  4. The appellant was fatigued at the said review hearing.
  5. The facts surrounding the flight of August 11, 1998, should have been argued at the review hearing.
  6. The Minister of Transport "wanted to hush up and toy with the proceedings" by hiding, manipulating or concealing the evidence concerning the flight of August 11, 1998.
  7. The appellant is therefore the victim of a procedural error.

PRELIMINARY MOTIONS

It is appropriate, first of all, to rule on the validity of a motion Mr. Albert presented at the start of the hearing to file an enlarged copy showing the notations pertaining to the two flights of August 4, 1998, appearing in an excerpt from his logbook, filed at the review hearing by the Minister of Transport as D-6.

Subsection 8.1(3) of the Aeronautics Act stipulates:

(3) An appeal to the Tribunal shall be on the merits based on the record of the proceedings of the member of the Tribunal from whose determination the appeal is taken but the Tribunal shall allow oral argument and, if it deems it necessary for the purposes of the appeal, shall hear evidence not previously available.

The appeal must be heard based on the evidence presented to the hearing officer, including the transcript of stenographic notes. The wording of the above-cited subsection is "evidence not previously available." The parties must present all their arguments and elements of proof at the review hearing, and if they do not do so at that stage they will not be able to make up for it at the appeal stage unless the elements of proof in question were not available at the time of the first hearing, and then only if the Tribunal deems it necessary.[1]

The panel is of the view that Mr. Albert was quite at liberty, in the first instance, to file an enlarged copy of the notations pertaining to both flights of August 4, 1998, but did not do so. The panel therefore considers that it is not new evidence within the meaning of subsection 8.1(3), as it was available at the time of the review hearing. Mr. Albert cannot reopen debate on the same elements of proof presented at the review hearing.

Secondly, Mr. Albert is asking the appeal panel for permission to introduce into evidence elements of fact, not filed at the review hearing, surrounding the circumstances of the flight of August 11, 1998. These elements are described in paragraphs 3 and 4 of a document he prepared for appeal purposes.

In support of his motion, Mr. Albert alleges that the initial complaint, filed as D-2, referred to a low-altitude flight over the vessel MV/La Tournée on August 11, 1998. He infers that if the Minister did not include the overflight of August in its notice of assessment of July 22, 1999, it was because there must have been an error in identifying his aircraft on the three occasions mentioned in the letter of complaint, D-2. In fact, while Exhibit D-2 mentions three dates, namely, August 4, 6 and 11, 1998, the Minister did not proceed against Mr. Albert for the flight of August 11.

First of all, the Minister need not prove there was an offence on August 11, nor elaborate on the reason or reasons that prompted it not to proceed. Mr. Albert need not defend himself. The Minister has the obligation to discharge its burden of proof only with regard to the offences mentioned in the Minister's notice of assessment for the flights of August 4 and 6, 1998, the flight of August 11 not being included.

Secondly, it was Mr. Albert's duty, at the review hearing, to bring elements to refute the evidence filed by the Minister regarding the offences of which he was accused, namely, those committed during the flights of August 4 and 6 only. Mr. Albert cannot rely on arguments about a flight for which he was not proceeded against to persuade the panel that these new elements would exonerate him from the offences of which he was accused in the notice of assessment.

The panel finds that the member was not obliged to hear the arguments pertaining to the flight of August 11, 1998, nor to make the inference about it suggested by Mr. Albert. The member did not commit any error of law in rejecting them. It is not relevant for the panel to examine on appeal facts surrounding a flight that was not the subject of an offence covered by the notice of assessment.

ARGUMENTS OF THE APPELLANT

Mr. Albert alleges that his main arguments are based on the facts surrounding the flight of August 11, 1998, and on the alleged withholding of evidence by the Minister about this flight. In his view, it is now impossible for him to re-establish his credibility, since the panel has decided not to consider these facts on appeal. Mr. Albert submits to the panel, however, a document he prepared and signed for appeal purposes.

As the arguments about the flight of August 11, 1998, are to be dismissed, his arguments may now be summarized as follows:

  1. His witness, Mrs. Côté, is a credible person who has developed an excellent memory working as secretary to six people and, although she concluded that at 18:30 hours their friends would not be coming, she did not mean to say that they had left at that time.
  2. At the review hearing, he did not remember, due to the stress, why the figure 1 appeared under the figure 2 in the notation of one of the two flights of August 4, 1998. He said he had made not one, but two corrections to the initial entry for this flight, logged first at 08:30 and 08:50 hours. He explains this as follows: he made the first correction by adding a 1 before the initial entries, then, noticing an error in his correction, he entered the figure 2 over the 1. His second correction was because, in order to convert the time to the afternoon, he had to add 12, not 10 hours.
  3. To explain the difference between the flight times logged for the return flight of August 4, he explained that wind was the main factor, that he uses his aircraft for recreational purposes, and that, as he loves the sensation of flying, he sometimes cuts back the engine to derive the maximum enjoyment.
  4. He reiterated to the panel that he did not fly on August 6, 1998, having made no entry in his logbook and having not invented an alibi.
  5. He told the panel that he has been flying about 8 years in the area and never had a complaint or warning issued against him prior to the notice of assessment of July 22, 1999.

ARGUMENTS OF THE RESPONDENT MINISTER

The arguments of the Minister's representative on appeal are as follows:

  1. The Minister has proven, on the balance of probabilities, all the elements relevant to the three offences alleged in its notice of assessment of July 22, 1999, in respect of the flights of August 4 and 6, 1998. Mr. Albert has not succeeded in overturning this evidence.
  2. The review member, who judges the facts in the first instance, is best able to choose and evaluate the evidence brought before him when it conflicts with other evidence.[2]
  3. The member drew conclusions as to credibility based on the evidence presented at the review hearing, and was right to dismiss the testimony of Mr. Albert and Mrs. Côté, taking into account various elements, notably the logbook entries, Mr. Albert's behaviour and testimony about the said entries, and the version of events as related by the Minister's witnesses, Messrs. Dupuis and Doré, who have no interest in the case.
  4. The appeal panel cannot review the member's findings as to credibility in the first instance unless they are unreasonable or the member's review determination was based on lack of evidence.[3]
  5. The review member's findings as to fact and credibility are reasonable and must be upheld.
  6. Mr. Albert's fatigue, stress, and difficulty in following the hearing proceedings or lack of knowledge do not constitute grounds for overturning the member's determination.

DISCUSSION OF THE GROUNDS OF APPEAL

It is important, first of all, to recall the following fact: the ownership of aircraft C-FFDA was not disputed at the review hearing. Mr. Albert stated that he is the owner and the only person who flies the aircraft in question.

1. Testimony of Mrs. Côté

At the review hearing, Mr. Albert's defence, for count I, relied essentially on the testimony of his friend, Mrs. Côté, who told of their flight on August 4, 1998. After having waited in vain for their friends, she concluded that at 18:30 hours they would not be coming. She testified that they, she and Mr. Albert, returned from Baie Cascouilla to Alma at about 20:30 hours that same evening. Moreover, the review member had the testimony of the two officers of the vessel MV/La Tournée, Messrs. Dupuis and Doré. The latter said they observed a small aircraft, whose registration they identified as C-FFDA, fly over the vessel they were aboard at about 18:55 hours on August 4, 1998, at a distance of less than 500 feet. According to the member, their recollections of the overflight were consistent with the notes entered in the logbook and the personal diary of the captain. The member was convinced there was no collusion between the two officers. Mr. Albert acknowledges that their method of noting information is "good."

Faced with conflicting evidence, the review member must assess the evidence submitted and attempt to determine and evaluate which of the two versions probably reveals the truth.

After having assessed the evidence before him and applied the credibility tests proposed in the authorities and jurisprudence, the member came to the conclusion that Mrs. Côté's testimony, while credible in many regards, was incorrect about one vital point, namely, the time of the take-off from Baie de Cascouilla and the return to Alma. The member preferred to accept the version of the Minister's witnesses, and said he was satisfied that all essential elements of the alleged offence for count I had been proven.

The role of the appeal panel is not to substitute its assessment of the facts for that of the review member, who had the advantage of hearing the Applicant and the Respondent, weighing their respective credibility, analysing both the documentary and testimonial evidence, and thus to reexamine the evidence presented at the review hearing merely to assess it differently, unless the member's assessment is unreasonable.[4]

The panel recognizes that the findings of fact and credibility expressed by the review member are entirely reasonable and must be upheld.

Ground dismissed.

2. Corrections of the notation for the flight of August 4, 1998

Mr. Albert wished to file new evidence about the correction of the notation for the flight of August 4, 1998, to explain why the figure 1 appeared under the figure 2. Mr. Albert did not remember the reason at the review hearing, owing to stress.

The role of the panel, pursuant to subsection 8.1(3) of the Aeronautics Act, is to hear the appeal based on the evidence presented before the member of the first instance. The panel cannot allow Mr. Albert to fill in gaps in the evidence he had an opportunity to bring out at the first hearing and permit him to reopen the debate on this matter. The panel rejects the introduction of this new evidence.

Ground dismissed.

3. The difference between the flight times entered for the flight of August 4, 1998

Mr. Albert attributes the 10-minute difference between the flight time entered for the outbound trip on August 4, 1998, and the return trip on the same date mainly to winds. Moreover, the captain of the vessel said he had taken several meteorology courses to obtain his certificate, and had made a logbook entry (Exhibit D-1) that the winds were calm at 18:30 hours that day.

The panel is of the opinion that it cannot substitute its assessment of the facts for that of the member, and recognizes that the conclusions he drew based on the evidence presented to him were wholly reasonable and must be upheld.

Ground dismissed.

4. The appellant made no flight on August 6, 1998

Mr. Albert reiterated to the panel that he made no flight the day of August 6, 1998, as he made no entry in his logbook that day. Messrs. Dupuis and Doré, witnesses for the Minister, provided testimonial and documentary evidence of the overflight of August 6, which the member accepted.

The member in the first instance exercised his discretion in assessing and evaluating the evidence presented to him. The panel confirms that the member's findings of credibility are reasonable.

Ground dismissed.

5. The appellant has never before had a complaint or warning issued against him

The panel cannot accept this argument as an adequate defence for the alleged offences.

Ground dismissed.

DECISION

The appeal is dismissed. The appeal panel confirms the decision of the Minister of Transport that the appellant contravened two counts of paragraph 602.14(2)(b) of the CARs and one count of subsection 605.94(1) and upholds the Minister's decision to impose the monetary penalties of $250 for count I, $250 for count II, and $100 for count III, for a total penalty of $600.

Reasons for the appeal decision:

Suzanne Racine, Member

Concurring are:

Faye Smith, Chair
Michel Larose, Member


[1] Kerry Michael Kokoska v. Minister of Transport, CAT File No. P-0053-33 (appeal) p. 5.

[2] Minister of Transport v. Thomas Ritchie Phillips, CAT File No. C-0014-33 (appeal).

[3] Trent Wade Moore v. Minister of Transport, CAT File No. C-0138-33 (appeal).

[4] Mario Noël v. Minister of Transport, CAT File No. Q-1739-33 (appeal).