Decisions

TATC File No. Q-2834-33
MoT File No. N5504-47815

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Minister of Transport, Applicant

- and -

Stéphane Giguère, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, ss. 602.14(2)(b), 602.25(2), 602.29(1)(e)

Ultra-light aircraft, Low flying, Hang glider, Burden of proof


Review Determination
Suzanne Racine


Decision: November 5, 2003

TRANSLATION

The Minister has not proven all the essential elements of the second offence. We therefore reject the assessment of the monetary penalty for this count. The Minister has proven, on the balance of probabilities, the allegations in the first, third and fourth offences mentioned in the Notice of Assessment of Monetary Penalty issued April 7, 2003, and we confirm the Minister's decision to assess the monetary penalties relating thereto, for a total penalty of $750. This amount must be made payable to the Receiver General for Canada and received by the Tribunal within 15 days of receipt of this determination.

A Review Hearing on the above matter was held August 25 and 26, 2003, at 10:00 hours at the Courthouse in Saint-Joseph-de-Beauce, Quebec.

The witnesses were excluded.

OBJECT OF THE REVIEW HEARING

On April 7, 2003, the Minister served on the Respondent, Mr. Stéphane Giguère, with a Notice of Assessment of Monetary Penalty in the amount of $1,000 pursuant to section 7.7 of the Aeronautics Act for having contravened paragraphs 602.14(2)(b) and 602.29(1)(e) and subsection 602.25(2) of the Canadian Aviation Regulations (CARs).

The Minister alleged that the Respondent had committed the following four offences:

(1) having operated, on July 14, 2002, at about 19:30 hours local time, contrary to paragraph 602.14(2)(b) of the CARs, a Sea-Bow paraplane, model B-2, registered as C-IGPI, at a distance of less than 500 feet from a vessel in the vicinity of Lac Poulin, Quebec;

(2) having operated, on July 14, 2002, at about 20:15 hours local time, contrary to paragraph 602.14(2)(b) of the CARs, a Sea-Bow paraplane, model B-2, registered as C-IGPI, at a distance of less than 500 feet from cottages situated on the shores of Lac Poulin, Quebec;

(3) having operated, on July 14, 2002, at about 19:30 hours local time, contrary to paragraph 602.29(1)(e) of the CARs, a Sea-Bow paraplane, model B-2, registered as C-IGPI, while carrying another person on board;

(4) as pilot-in-command of a Sea-Bow paraplane, model B-2, registered as C-IGPI, on July 14, 2002, at about 19:30 hours local time, contrary to subsection 602.25(2) of the CARs, having permitted a person to leave the aircraft during flight in the vicinity of Lac Poulin, Quebec.

The Minister assessed a monetary penalty of $250 for each offence, for a total of $1,000.

As the Respondent had not paid the amount of $1,000 by the deadline of May 13, 2003, the Transportation Appeal Tribunal of Canada duly convened this hearing.

THE LAW

Section 7.7 of the Aeronautics Act stipulates as follows:

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. [version in force at the time of the alleged events]

Paragraph 602.14(2)(b) of the CARs reads as follows:

602.14 [...]

(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. [version in force at the time of the alleged events]

Subsection 602.25(2) of the CARs stipulates:

602.25 [...]

(2) No pilot-in-command of an aircraft shall permit a person to enter or leave the aircraft during flight unless

(a) the person leaves for the purpose of making a parachute descent; or

(b) the flight is authorized under Subpart 3 or the entering or leaving is permitted in accordance with section 702.19.

Paragraph 602.29(1)(e) of the CARs reads as follows:

602.29 (1) No person shall operate a hang glider or an ultra-light aeroplane

[...]

(e) subject to subsections (4) and (5), while carrying another person on board;

THE FACTS

Applicant's Evidence

The Minister's representative called Mr. Andréa Latulippe, Mayor of the Municipality of Lac Poulin. Mr. Latulippe filed, as Exhibit M-1, a map (graphic register) of the Municipality of Lac Poulin. Mr. Latulippe owns property located at 184 Chemin du Lac, identified by a sketch that was filed as Exhibit M-2. It also shows the location of the property of Mr. Stéphane Giguère's parents and that of Mr. Paré.

The witness testified that on July 14, 2002, at about 19:30 hours, he was riding on board his water craft with his wife on Lac Poulin. Mr. Gendreau and his two (2) sons were also on the lake on board their craft, not far from his. He said he saw the paraplane which belonged to the Respondent, whom he has known for some fifteen years, which was following a yellow Sea-Doo at a distance of no more than 30 feet above the craft.

The Sea-Doo and the Respondent's paraplane, which he described as being a rectangular-shaped parachute powered by a motor at the rear and having a passenger compartment with seating for two (2) people, followed a course (dotted line on Exhibit M-2) in between the properties owned by Mr. Paré and by Mr. Stéphane Giguère's parents. In addition to the movement of the paraplane, Mr. Latulippe indicated the location of his craft on Lac Poulin during each low flight by means of an arrow located to the right of the dotted line, with the other arrow identifying Mr. Gendreau's craft.

Mr. Latulippe then shifted to the left to follow the movement of Mr. Giguère's paraplane, as they were approaching the Respondent's parents' property. The paraplane then conducted a second low flight over the cottages at the edge of Lac Poulin (sketches M-2, solid line/2nd time), then over Lac Poulin. Once it was over the lake, he saw someone, who appeared to be a woman, prepare with some hesitation to leave the passenger compartment of the paraplane and jump into the lake from a height he estimated to be about 25-30 feet. He thought the incident took place at a distance of about 100 feet from the Respondent's parents' property. The witness said that the paraplane he saw on July 14, 2002, was the one in a photograph shown to him by the Minister's representative, which was filed as Exhibit M-3 by the witness Gilles Tremblay.

Mr. Latulippe clarified that the paraplane did not land on the water and it simply kept going after a second low flight. He declared that the weather was fine that day and there was not a lot of wind. The witness thought that if there had been a strong wind, "the paraplane would have come down on the Sea-Doo. To me, it was dangerous" [translation].

In cross-examination, Mr. Latulippe reiterated that Mr. Giguère's paraplane was no more than 20-25 feet above the Sea-Doo the first time he saw it following the craft. He identified the Respondent at the paraplane controls, especially during the second low flight. He did not remember whether the Respondent's paraplane had floats, but he clearly remembered that it was fitted with "wheels." He could not say whether it was a "paraplane" or a "hang glider." He readily admitted that the water craft and the paraplane had not collided but he submitted that this could have happened. Mr. Latulippe was about 50 feet from where the person fell into the water.

In re-examination, the witness declared that not five minutes had gone by between the first and second low flight and he did not think that there had been a pilot change in the interim.

Questioned by the Tribunal, Mr. Latulippe specified that he saw Mr. Stéphane Giguère at the controls of the Sea-Bow at about 19:30 hours, but he had been unable to identify the person at the controls of the paraplane that came back at about 20:15 hours (second offence).

The Minister's second witness was Mrs. Fleurette Doyon Latulippe, Mr. Andréa Latulippe's wife. She was on board the same water craft as her husband on July 14, 2002, at about 19:30 hours. The couple had decided to go for a boat ride on the lake after supper since it was a nice day.

Mrs. Latulippe stated that she first saw a multicoloured "paraglider" with "rings" underneath conducting what seemed to her a low-altitude race with a Sea-Doo that was heading straight ahead towards the Giguère's cottage. She then testified that the Sea-Doo stopped at the Giguère's. She then again saw the Respondent's paraplane fly above her and noted that the Respondent appeared to be helping the other passenger, probably a woman, leave the paraplane. She stated that she then saw this person fall into the water. She thought this incident had occurred 25-30 feet in the air opposite the Giguère's cottage, near the shoreline of the Giguère's cottage. Mrs. Latulippe filed, as Exhibit M-4, a sketch of Lac Poulin which she had annotated. The number 1 indicates where she was on Lac Poulin when she saw the first low flight. The path used by the Sea-Doo and the Respondent's paraplane is shown by an arrow. The number 2 indicates where she was when she saw the person fall from the paraplane opposite the Giguère's property. Mrs. Latulippe did not see the Respondent's paraplane land on the water and she stated that she had known the Respondent for 15 years.

The witness acknowledged, in cross-examination, that she did not know whether or not the Respondent's paraplane was fitted with floats, nor did she notice the call letters on the paraplane. However, she did see the paraplane's "rings". She said the paraplane was similar to paraplane number 8 shown in a table prepared by the Respondent and representing several models of ultra-light aeroplanes.

Mr. Carrier called Mr. Gilles Tremblay, a corporal with the Royal Canadian Mounted Police assigned to the Border Service in Saint-Georges-de-Beauce to testify. Mr. Tremblay has known Mr. Stéphane Giguère for two years. Acting on a complaint filed by Mr. Andréa Latulippe, the witness took his written statement to the effect that a motorized parachute, operated by Mr. Stéphane Giguère, had conducted low-altitude flights over Lac Poulin on July 14, 2002, and that there had been a passenger on board who leapt into the water from a height of approximately 20-25 feet.

Mr. Tremblay then met with Mr. Stéphane Giguère on July 24, 2002, accompanied by Constable Pascal Paradis. The witness said that the Respondent had declared to him, after the usual warning had been issued, that he had conducted low-altitude flights on July 14, 2002, that his sister was on board his paraplane and that she had leapt into Lac Poulin. He testified that Mr. Giguère had informed him that his paraplane was equipped with floats for landing on the surface of the lake. Mr. Tremblay did not, however, meet with any witness during his investigation who had seen the Respondent land on Lac Poulin on July 14, 2002, the Respondent having refused to give him names to corroborate his statements.

Mr. Tremblay filed the photograph (M-3) of the Sea-Bow paraplane flown by the Respondent on July 14, 2002, that he had taken at an informal meeting at the RCMP border crossing in Saint-Georges-de- Beauce where the Respondent had taken his paraplane. He also filed his investigation report as Exhibit M-5 as well as a photograph of the Giguère's cottage that had been taken from Mr. Vallée's cottage. This photograph depicts the path used by the Sea-Doo and the Sea-Bow. This is in the narrow part of Lac Poulin.

In cross-examination, the witness stated that he had not obtained a signed written statement from the Respondent since he had not wanted to sign one for him. His preliminary investigation report was prepared based on conversations he had with Mr. Latulippe, Mrs. Doyon-Latulippe and on information the Respondent had wanted to submit to him. Mr. Tremblay sent his report to Transport Canada for purposes of its own investigation.

In re-examination, Mr. Tremblay stated that Mr. Stéphane Giguère's verbal statement had been given freely and voluntarily and that it is normal procedure for the RCMP to co-operate with Transport Canada in such cases.

Mr. Pascal Paradis, a constable at the Beauce Border Service, testified next. He was present as a witness at the meeting between Messrs. Tremblay and Giguère on July 24, 2002. He read over the investigation report (M-5) written by Mr. Tremblay and stated that the facts presented faithfully reflect the conversation between these two individuals. Mr. Paradis explained that the Respondent had not denied that a passenger had leapt from the paraplane and then admitted that it was his sister and that she had leapt into Lac Poulin while the paraplane was running. According to the Respondent, she left the passenger compartment of the paraplane about twenty (20) feet above "lake level." In his view, there was only one low-altitude flight.

The Minister's representative called Mr. Patrick Carrière, Inspector, Civil Aviation with Transport Canada, Aviation Enforcement, to testify. Mr. Carrière is also a commercial pilot and a Class 1 flight instructor. On July 15, 2002, the witness spoke with Corporal Tremblay about the low-altitude flights conducted by the Sea-Bow registered as C-IGPI the previous day over Lac Poulin.

Mr. Carrière, who is not familiar with the type of ultra-light aeroplane involved, contacted the Sea-Bow manufacturer in Valcourt and spoke to the factory owner. He told the Tribunal that the Sea-Bow falls into the category of motorized parachutes in the line of ultra-light aeroplanes. This paraplane is known for the design and mounting on the undercarriage of four (4) Spiros or ovoid plastic wheels that allow for better directional control, greater stability during flight and increased control on landing. The Spiros allow for landing on different types of terrain _ rough fields, snow, sand and, only in case of emergency, water. The witness filed, as Exhibit M-7, a brochure from the Sea-Bow manufacturer.

The witness then filed, as Exhibit M-8, a true copy of the original of the endorsement of the student pilot permit, ultra-light/motorized parachute category, held by Mr. Stéphane Giguère at the time of the alleged offences. This permit is accompanied by further conditions, which are set out on the back of the said permit, filed as Exhibit M-10:

  • The holder of a student pilot permit may, for the sole purpose of the holder's flight training, act as pilot-in-command of any paraplane of the ultra-light category only if the holder is under the direction and supervision of a professional pilot, ultra-light category [our italics];
  • Unless otherwise specified, no passenger may be carried on board;
  • All flights conducted in this capacity must be conducted under day VFR, and within territorial limits in Canada.[1]

Mr. Carrière filed the page from the Respondent's Canadian passport as Exhibit M-9 and the Respondent's medical declaration was filed as Exhibit M-11. Exhibit M-12 was filed in a bundle and it contained the following items:

  • the certificate of registration of the Sea-Bow C-IGPI in the name of Stéphane Giguère;
  • the contract of sale for the Sea-Bow concluded between Mr. Stéphane Giguère and Mr. Claude Fortin on July 28, 1999;
  • the certificate of registration of the said paraplane in the name of Mr. Claude Fortin; and
  • the background information about paraplane C-IGPI taken from the official database of Transport Canada.

Mr. Carrière testified that he met with Messrs. Latulippe and Tremblay on September 11, 2002, to confirm the information contained in the report filed as Exhibit M-5. He said he had a fair bit of difficulty contacting the Respondent to get his version of the events. Mr. Carrière did, however, manage to speak to him towards the end of September 2002. After the usual warning, Mr. Stéphane Giguère told him he had flown low over Lac Poulin on July 14, 2002, to "test out" the floats he had just installed on Sea-Bow C-IGPI, and that there was no one on board since he wanted to see how the paraplane would perform. Mr. Carrière told him that a Notice of Assessment of Monetary Penalty would be issued, i.e., the Notice dated April 7, 2003. The penalty of $250 for each alleged offence is the recommended penalty for a first offence.

Mr. Carrière again met with Mr. Giguère on June 20, 2003, at the RCMP border crossing in Beauce. The Respondent signed the statement, filed as Exhibit M-13, in which he stated:

(1) he "passed close to a Sea-Doo" on July 14, 2002, with a Sea-Bow registered as C-IGPI;

(2) there was a passenger on board that was an Air Canada airline pilot;

(3) this person left the paraplane once it had landed on the water. The water landing lasted ten (10) seconds.

Questioned by the Minister's representative about the Sea-Bow's performance during a 10-second landing on water, Mr. Carrière acknowledged that he is no expert on the subject but thinks that 10 seconds is enough time for the parachute to lose its lift and fall to the water. On "Spiros only," he thought such a stop could cause the paraplane to pivot backward, especially if there are two people on board.

Mr. Carrière also calculated that there is a distance of just 1,200 feet between the two shores, according to the scale used on the Municipality of Lac Poulin map filed as Exhibit M-1. He commented that, in his opinion, the pilot must be very precise if he wants to meet the requirement of 500 feet from any person, vessel or structure, pursuant to paragraph 602.14(2)(b) of the CARs.

In cross-examination, Mr. Carrière said that the Respondent never mentioned to him that he was in training on July 14, 2002, or that there was an instructor on board with him for that purpose. The witness did not know from what location the Respondent took off with his Sea-Bow on July 14, 2002. He said that someone can modify his motorized parachute-type ultra-light aeroplane without having to get the signature of a technician endorsing the change. Mr. Carrière has never flown a motorized parachute and admitted that he is not an expert in this area. He reiterated that the Respondent told him that the flight of July 14, 2002, was for the purpose of testing the paraplane's floats. To his knowledge, he had never seen a motorized parachute that could land on water. An aircraft can descend below the 500-foot limit only if the landing/water landing is conducted without endangering people, property or structures on the surface.

Mr. Michel Gendreau, a businessman and owner of 198 Chemin du Lac, was the next to testify. As he was on board his boat on Lac Poulin not far from Mr. Latulippe's water craft, the witness said that he saw a motorized parachute following a Sea-Doo at a height of no more than 20-25 feet, on July 14, 2002, at about 19:00 or 19:15 hours. "It looked like they were racing," he said. He indicated the path taken by the Sea-Doo and the motorized parachute with a vertical arrow on the sketch filed as Exhibit M-15. To the right of this arrow, he indicated the location of his water craft by the use of "X"'s and that of Mr. Latulippe (oblique line). The motorized parachute then came back going over his boat and then he saw a girl jump from the parachute 25-30 feet above the water.

According to Mr. Gendreau, the motorized parachute did not touch the surface of the water. He did not know the person who jumped, nor the pilot of the paraplane. He had witnessed something that seemed to him as ludicrous as a scene from "Drôle de vidéo" [a "Video Bloopers" type show]. Mr. Gendreau noticed the "pads" with which it was fitted, but not the registration of the paraplane. The paraplane was similar to the one appearing in Exhibit M-3. He did not see the Respondent's paraplane again that day.

It was revealed in cross-examination that Mr. Gendreau's water craft was about 100 feet from the Sea-Doo when he assumed, the first time he saw the motorized parachute, that it was racing with the Sea-Doo. Mr. Gendreau, a pilot as well, did not notice that the Respondent's paraplane was equipped with floats. He confirmed that he did indeed see someone jump into the water. The witness has never flown a motorized parachute.

Respondent's Evidence

Mr. Giguère called his sister, Mrs. Johanne Giguère to the stand. She said that her brother asked her to take the Sea-Doo and watch his paraplane because he "would be performing a test" that day over Lac Poulin with an instructor. She noticed that her brother's paraplane had lost a fair bit of altitude and said that she thought there was a problem. She saw him regaining altitude while going in front of their parents' cottage and noticed that a woman on board wanted to leave the passenger compartment. Her brother's paraplane then landed on the water, the woman "got out" and Ms. Giguère took her back to her parents' cottage by Sea-Doo.

In cross-examination, Ms. Giguère confirmed that her brother was flying the Sea-Bow that day with a female instructor unknown to her. Her brother told her that he would stay 500 feet above her but he might possibly be losing altitude. She noted, moreover, that his paraplane was "very, very low," "about 40 feet from the water." He seemed to be having a problem with a float, because he was making signs to her. She saw her brother land on the water for 10 seconds, long enough for the instructor to leave the passenger compartment and lean over and knock the float back into place before taking off again. Once she was on the Sea-Doo, the instructor told her that part of the float had broken away. The incident occurred 150 feet from her parents' cottage.

Questioned by the Tribunal, Ms. Giguère specified that the paraplane's "rings" had skis that rested on them.

Mr. Sébastien Morin was at the Giguère family cottage on July 14, 2002. He testified that the paraplane equipped with yellow wheels conducted a low-altitude flight the first time. He saw it touch the water a second time and saw someone go into the water to put the float in place before the paraplane took off again.

In cross-examination, Mr. Morin said he did not remember the colour of the parachute, or what the floats looked like. He confirmed that the paraplane did not stop when it touched down. He saw the person outside the paraplane but did not identify that person. According to him, the paraplane touched down on the water "between the middle and the lakeshore."

Mr. Giguère called Mr. François Poulin, also a family friend who was at the Giguère's cottage on July 14, 2002. Mr. Poulin said that he first saw the Respondent's paraplane flying low and then touched down on the water for 10-12 seconds about 100 feet from the shore of Lac Poulin opposite the Giguère's cottage. Someone that he did not know left the hang glider, went onto the Sea-Doo, and left. The witness said that the Respondent's paraplane had floats.

In cross-examination, Mr. Poulin confirmed that the incident occurred on July 14, 2002, after supper. The first time he saw the Respondent's paraplane, it was coming from Saint-Benoît and then turned. He did not clearly remember the second low flight. He did remember, however, that the paraplane touched down on the water and continued to move forward. He then saw someone he did not know go into the water and onto the Sea-Doo. This person leaned towards the yellow rings before jumping into the water. He did not remember her doing anything else. He did not pay that much attention because he thought there was a "float, a ski or a buoy" beneath the paraplane. The Respondent's yellow and red Sea-Bow which was fitted with a multicoloured parachute then took off again.

The Tribunal heard Mr. Stéphane Giguère. He said he left the Aviasol airfield in Saint-Benoît aboard the Sea-Bow registered as C-IGPI heading for Lac Vallée to make a water landing. He wanted to test the floats he had installed on his paraplane, and then fly above 500 feet over Lac Poulin and Lac Fortin and return to the Aviasol runway. He filed in evidence, as Exhibit D-1, a document he had prepared, showing on one side, photographs and images of the Sea-Bow and an ultra-light aeroplane equipped with floats and, on the back, illustrations of various types of ultra-light aeroplanes, including the one marked as number 8 identified by Mrs. Doyon Latulippe. He also filed, as Exhibit D-2, a diagram of a side view of the parachute supports and, on page 2, the one including the modification made to the Sea-Bow.

Mr. Giguère admitted having conducted a low-altitude flight (25-30 feet) over Lac Poulin on his instructor's recommendation because of the problem detected with the float's front ski of his paraplane, and also to find out the variations in temperature over the lake. It was at that time he made signs to indicate to his sister that he had a problem. He passed in front of his parents' cottage, checked if there were any swimmers, and began his descent to touch down on the water across from his parents' cottage. The instructor was already preparing to jump. He stated that he had decided to touch down on Lac Poulin "to attach the float at its anchoring point," but this had not been possible. He took off again immediately, heading, at an altitude of about 1,000 feet, for the Aviasol runway, where the float's front ski broke on impact upon landing.

Mr. Stéphane Giguère informed the Tribunal, in cross-examination, that he had completed his training on ultra-light aeroplanes/motorized parachutes and now holds his pilot permit for this category of paraplane. However, Mr. Giguère held a student pilot permit at the time of the alleged offences on July 14, 2002. He reiterated that he had installed foot-thick foam floats on each side, between the front and rear Spiros, and plexiglass foam ends, front and back, turned up like a ski and fastened underneath the Spiros (D-2), at the time of the flights of July 14, 2002. He pointed out that he can modify the paraplane without having to notify authorities. He had taken the added precaution of fastening the floats to the paraplane using a "bungee-type elastic cord purchased at Canadian Tire for $19.95." He was accompanied during the flight by an Air Canada pilot, who's a hang glider flight instructor and prefers that her name remain anonymous.

After touching down on Lac Vallée for what he said was a "good" 10-15 seconds, he took off again heading towards Lac Poulin and Lac Fortin according to the one-hour flight plan filed with Aviasol. He specified that he is not required to make such a flight plan. After taking off from Lac Vallée, where no cottages are located by the shore, Mr. Giguère noticed that the front ski of one of the floats "was bobbing." Given the nature of the problem, he thought it would be too risky "to land" with an additional person seated in the back. He then decided to touch down on Lac Poulin, thinking that, in the circumstances, a water landing would exert less pressure than landing on the ground. He confirmed that he was in an emergency situation and that he touched down on the surface of Lac Poulin at least ten (10) seconds to allow the instructor to leave the paraplane and he left on his own heading toward the Aviasol runway, where the damaged float broke on impact during the landing. No incident report was completed. The Respondent refused to say anything about the identity of the Air Canada pilot who was with him, and therefore refused to bring evidence that this person held an instructor permit for ultra-light aeroplanes/motorized parachutes.

The Tribunal questioned the Respondent about the contradiction between the versions of the Minister's witnesses, who said they had seen someone "jump" out of the paraplane from a height of 25-30 feet, and those of his own witnesses, who said they had seen someone "leave" the paraplane during the water landing. The Respondent explained that the Minister's witnesses may have been blinded by the water thrown up on either side of the paraplane during the water landing, and thus their perception would have been affected. According to him, the contention that this person jumped 25-30 feet is incorrect. This person left during the water landing. He took his instructor's advice and took off again since he was not sure of the paraplane's buoyancy if he landed in the water, although he had difficulty. He said that this decision may have allowed him to "save" the paraplane.

MINISTER'S ARGUMENTS

The Minister's representative stated that he has proven, on the balance of probabilities, all of the essential elements of the alleged offences against the Respondent. He believes he has clearly shown that the motorized parachute, a model B-2 Sea-Bow registered as C-IGPI flown by the Respondent, came within a distance of 500 feet from the Sea-Doo on July 14, 2002, at about 19:30 hours and of the cottages on the shores of Lac Poulin at about 20:15 hours that same day with another person on board. This person left the paraplane during the flight some 25-30 feet above the surface of Lac Poulin. The Minister's witnesses have unanimously stated that the Sea-Bow had not performed a water landing on Lac Poulin that day.

The student pilot permit held by the Respondent on July 14, 2002, did not authorize him to carry passengers. The Respondent has refused, moreover, to reveal the name of the instructor who was with him on July 14, 2002, and to prove her qualifications. The Respondent never told investigators (RCMP and Transport Canada) that he was in an emergency situation that day and had to perform a water landing for that reason.

According to the Minister's representative, the issue is whether the Respondent told the truth about the instructor and the alleged technical problem he was experiencing with the float's front ski en route to Lac Poulin. The Minister alleged that the Respondent concocted this story at the last minute in order to show the possibility of an emergency that probably never existed, or at the least had not been positively established.

RESPONDENT'S ARGUMENTS

The Respondent contends that the Tribunal does not have any proof that he was operating the Sea-Bow at a low altitude over the cottages on the shores of Lac Poulin at about 20:15 hours on July 14, 2002.

He reiterated that he made the decisions that were necessary that day and that his conduct was dictated by the emergency situation that took place on July 14, 2002. His witnesses, who all confirmed that a water landing was made on Lac Poulin on July 14, 2002, are every bit as respectable as those of the Minister.

Transport Canada would have learned of the emergency situation he had to face that day if a thorough investigation had been conducted. It could have determined that the causes of the so-called offences were related to the emergency.

The Respondent did not agree with the facts presented in the RCMP's preliminary investigation report (M-5). He therefore refused to sign a statement to this effect. He never admitted that his sister had jumped down from the paraplane.

REASONS

First Offence /Appendix A to the Notice of Assessment

Transport Canada alleged that the Respondent had operated a Sea-Bow paraplane registered as C-IGPI at a distance of less than 500 feet from a vessel, on July 14, 2002, at about 19:30 hours local time, contrary to paragraph 602.14(2)(b) of the CARs.

In order to establish the Respondent's culpability, the Minister must prove all the essential elements of the alleged offence on a balance of probabilities. The Minister must prove that the Respondent operated the said paraplane at a distance of less than 500 feet from a vessel, other than to conduct a take-off, approach or landing, on the date and time mentioned in the notice of assessment.

Subsection 101.01(1) of the CARs defines "vessel" as any ship, boat or other floating structure, other than an aircraft, used for navigation on water. A Sea-Doo is clearly a "vessel" within the meaning of the CARs.

Messrs. Latulippe and Gendreau and Mrs. Doyon Latulippe all confirmed they saw, on July 14, at about 19:30 hours, an paraplane which they described, in their way, as a coloured "motorized parachute" or "paraglider" with a motor at the back. All these witnesses noticed the original feature of the paraplane, the Spiros, referring to them in their testimony as "wheels," "rings" or "pads."

The Doyon Latulippe couple identified the paraplane appearing in Exhibit M-3 as the one they saw that day. The couple's testimony is corroborated by that of Mr. Gendreau, who witnessed the incident that happened not far from the Latulippes' water craft that day. Mrs. Doyon identified photograph number 8, among all the images appearing on the back of Exhibit D-1 submitted by the Respondent, as the paraplane she had seen. Photograph 8 depicts a Sea-Bow. Mrs. Doyon identified Mr. Giguère as being at the controls of the paraplane during the second low flight. The couple has known the Respondent for some fifteen years.

The Minister's witnesses were all under the impression that the paraplane "was following" the Sea-Doo. While giving their respective testimony, they referred to the fact that the paraplane looked as though they were "racing". The Minister's witnesses confirmed that the paraplane was no more than 20-25 feet from the Sea-Doo at that time. The Latulippes expressed a mix of apprehension and fear regarding the incident and Mr. Gendreau said that the manoeuvre was "senseless." Mrs. Doyon added that the incident occurred at a high speed.

The RCMP investigation report (M-5) was based on a meeting between Mr. Tremblay, the Respondent and Constable Paradis who was also present as a witness. The report also included testimony from Messrs. Tremblay and Paradis revealing that Mr. Stéphane Giguère admitted to them that he had flown at a very low altitude aboard the Sea-Bow registered as C-IGPI, on July 14, 2002, at about 19:30 hours, with a passenger, his sister, over Lac Poulin. All these witnesses confirmed that the Respondent's paraplane did not touch down on the surface of Lac Poulin.

In his statement of June 20, 2003, the Respondent confirmed that he flew his Sea-Bow paraplane registered as C-IGPI at a low altitude near a Sea-Doo, and on board was an Air Canada pilot who left his paraplane during a 10-second water landing on Lac Poulin, on July 14, at about 19:30 hours. The inspector did not mention in his question that this was on July 14, 2002, but subsequent information contained in the statement refers to the event having taken place in 2002.

We also have the Respondent's testimony that he conducted a low altitude flight over Lac Poulin on the recommendation of the person accompanying him, an instructor, because of the problem detected with the front ski of the float of his paraplane. Ms. Johanne Giguère, his sister, corroborated this version. The low-altitude flight was also noticed by Messrs. Morin and Poulin, family friends who were at the Giguère's cottage that day. The Respondent's witnesses all testified that the paraplane was equipped with floats. The Respondent, who was conducting a flight test after installing floats on the paraplane, confirmed that he had made an emergency water landing in order to attach the ski to the front of the paraplane at its anchorage point because it had been "bobbing" since taking off from Lac Vallée. The Respondent figured it was too risky to "land" and he decided to "make a water landing" on Lac Poulin to drop off his passenger and return to the Aviasol runway by himself. Ms. Johanne Giguère and Messrs. Morin and Poulin all confirmed that the Respondent's water landing on Lac Poulin lasted 10-12 seconds, and the paraplane took off again.

Subsection 602.14(2) of the CARs does not apply when conducting a take-off, approach or landing (water landing in this case) or when permitted in application of subsections 602.15(1) and (2) of the CARs, which read as follows:

602.15 (1) A person may operate an aircraft at altitudes and distances less than those specified in subsection 602.14(2) where the aircraft is operated at altitudes and distances that are no less than necessary for the purposes of the operation in which the aircraft is engaged, the aircraft is operated without creating a hazard to persons or property on the surface and the aircraft is operated

(a) for the purpose of a police operation that is conducted in the service of a police authority;

(b) for the purpose of saving human life;

(c) for fire-fighting or air ambulance operations;

(d) for the purpose of the administration of the Fisheries Act or the Coastal Fisheries Protection Act;

(e) for the purpose of the administration of the national or provincial parks; or

(f) for the purpose of flight inspection.

(2) A person may operate an aircraft, to the extent necessary for the purpose of the operation in which the aircraft is engaged, at altitudes and distances less than those set out in

(a) paragraph 602.14(2)(a), where operation of the aircraft is authorized under Subpart 3 or section 702.22; or

(b) paragraph 602.14(2)(b), where the aircraft is operated without creating a hazard to persons or property on the surface and the aircraft is operated for the purpose of

(i) aerial application or aerial inspection,

(ii) aerial photography conducted by the holder of an air operator certificate,

(iii) helicopter external load operations, or

(iv) flight training conducted by or under the supervision of a qualified flight instructor.

It is important to note that the Tribunal must consider diametrically opposed versions. It is up to the Tribunal to determine which of the two, in light of the circumstances, probably reveals the truth. Specifically, the Tribunal must first determine whether the flight of July 14, 2002, falls within one of the exceptions set out above or whether the Respondent conducted, within the meaning of subsection 602.14(2) of the CARs, an approach or water landing on Lac Poulin. It must then assess the conflicting evidence that has been presented to it.

To this end, the authors Sopinka and Lederman[2] propose the following test:

... 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 demeanor 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....

All the witnesses, both those of the Minister and those of the Respondent, agree that Mr. Stéphane Giguère's paraplane flew very low coming close to a Sea-Doo that was on Lac Poulin on July 14, 2002, at about 19:15 hours local time. The witnesses also agree on the paths used by Mr. Giguère's paraplane to fly over two times that day. The low flights do not clearly fall within the exceptions set out in subsections 602.15(1) and (2) of the CARs. Do these low flights fall within the context of an approach or water landing? The Minister's witnesses agree that there was no water landing, whereas the Respondent's witnesses take the position that there was.

However, the Tribunal is puzzled by the Respondent's explanations of the said low flights. If these low flights have resulted from an emergency situation, as the Respondent has submitted, why were the RCMP officers Tremblay and Paradis not informed of this during their meeting on July 24, 2002, that is, ten (10) days following the incident? Why did he not do the same with Mr. Carrière of Transport Canada when he signed the statement of June 20, 2003? The Respondent did not mention the emergency situation he had faced that day until the day of the hearing. We fail to understand why the Respondent did not want to reveal this crucial element to the investigators. Mr. Giguère has told us that, after consulting with acquaintances, it was suggested that he say as little about it as possible, since the burden of proof to determine the causes of the offence was on the Minister of Transport. Contrary to his assertion, it is not up to the Minister to determine the causes of the alleged offence but rather to establish, on the balance of probabilities, the existence of each essential element that led to the offence. Under normal circumstances, the Respondent, who at that time had the burden of proof, should have submitted prior to the day of the hearing that all the necessary precautionary steps had been taken. Why not just simply admit that the low-altitude flight was the result of a float test that went wrong and that an emergency situation arose?

The cross-examination of the Minister's witnesses revealed that none of them had noticed that the paraplane had floats. The Tribunal does not believe that their testimony is tainted by the fact that they do not recall whether or not the paraplane was equipped with floats. The witnesses had no knowledge of ultra-light aeroplanes. They were uninitiated observers who had proved to be honest in their description of the paraplane, not hesitating to stick to the facts and details they accurately recalled. Mr. Gendreau did not hesitate to confirm that he "had no idea who was flying the paraplane" and, moreover, that he did not know the Respondent. Their recollection of the events that took place on July 14, 2002, seems to us to be credible and consistent.

The Respondent called his sister and two family friends as witnesses. These witnesses, related through blood or friendship, testified rather briefly regarding the events of July 14, 2002. Messrs. Morin and Poulin appeared especially intimidated by the process. They do not clearly recall the events, and their version of the facts in cross-examination struck us as vague, even evasive, with regard to what the floats looked like. They obviously did not provide more information than was necessary. Ms. Giguère was a little more talkative, but it was not until undergoing cross-examination that she elaborated on the nature of the problem her brother seemed to have experienced on July 14, 2002. Ms. Giguère was the only person that figured the Respondent had "a problem." This impression probably resulted from her conversation with her brother to test the floats on the Sea-Bow prior to the flights of July 14, 2002. She even referred to the fact that her brother would stay 500 feet from her but might possibly lose altitude, as though the Respondent had decided ahead of time to fly very low.

Ms. Giguère and Mr. Poulin mentioned that someone on board the paraplane left during the brief water landing and knocked the float back into place before the paraplane took off again. None of the Respondent's witnesses knew this person even though Ms. Giguère took her back to her parents' cottage on her Sea-Doo and Mr. Morin was there at that time. The Respondent even refused to reveal the person's name for fear she would suffer negative consequences from her employer. It is not clear, in light of Ms. Giguère and Mr. Poulin's testimony, whether the instructor leaned towards the Spiros/floats before or after jumping into the water. The Respondent told the RCMP investigators that his sister had jumped below the paraplane, then subsequently argued that he had never made such a statement, and finally told Transport Canada that the person was an Air Canada pilot.

These elements suggest that the Respondent is attempting to conceal or protect information and thus preventing the Tribunal from being convinced, on the balance of probabilities, that the Respondent's version is more probative and better represents the events that actually took place than those submitted by the Minister's witnesses.

We confirm the monetary penalty of $250 assessed by the Minister.

Third Offence/Appendix A to the Notice of Assessment

Transport Canada alleged that the Respondent had operated a Sea-Bow paraplane registered as C-IGPI while carrying another person on board, on July 14 at about 19:30 hours local time, contrary to paragraph 602.29(1)(e) of the CARs.

All testimony heard by us, for both the Applicant and the Respondent, is to the effect that there was indeed a second occupant aboard the paraplane flown by the Respondent, on the date and time specified in the notice of assessment. Clearly there was a passenger on board. Mr. Stéphane Giguère first admitted to Corporal Tremblay and Constable Paradis that his sister was on board on July 14, 2002 (M-5). The Respondent then changed his version, admitting to Mr. Carrière of Transport Canada (M-13) that the person was an Air Canada pilot, but he would not identify the individual.

Paragraph 602.29(1)(e) of the CARs stipulates that no person shall operate a hang glider or an ultra-light aeroplane while carrying another person on board. A person may operate a hang glider or an ultra-light aeroplane with another person on board where the flight is conducted for the purpose of providing dual flight instruction[3] or where the pilot holds a permit or licence issued pursuant to Subpart 1 of Part IV that is appropriate to the functions or privileges being exercised.[4]

On July 14, 2002, the Respondent held a student pilot permit.[5] The holder of such a permit may act as pilot-in-command of any aircraft of the appropriate category (ultra-light/motorized parachute) only if the holder is under the direction and supervision of a professional pilot, ultra-light aeroplane category, if no passenger is on board and the flight is conducted during day VFR conditions, in Canada.

In his defence, the Respondent confirmed that he operated the model B-2 Sea-Bow registered as C-IGPI on July 14, 2002, accompanied by an Air Canada pilot whose name he prefers to withhold in order to protect the person's anonymity.

In absence of proof to this effect, the Tribunal must find that the Minister has proven, on the balance of probabilities, the essential elements of the third alleged offence in Appendix A of the notice of assessment. We confirm the monetary penalty of $250 assessed by the Minister.

Fourth Offence/Appendix A to the Notice of Assessment

Transport Canada alleged that the Respondent, as pilot-in-command of a Sea-Bow paraplane registered as C-IGPI, had permitted a person to leave the paraplane while flying in the vicinity of Lac Poulin, on July 14, 2002, at about 19:30 hours local time, contrary to subsection 602.25(2) of the CARs.

The Minister's three (3) witnesses confirmed that someone, most likely a woman, jumped from the paraplane from a height of 25-30 feet. These witnesses all confirmed that the Respondent did not land on the surface of Lac Poulin. When he met with Messrs. Tremblay and Paradis of the RCMP on July 24, 2002, the Respondent stated to them that a person, his sister, had jumped from the passenger compartment into Lac Poulin. However, the Respondent mentioned to Inspector Carrière of Transport Canada that a person, an Air Canada pilot, left the paraplane following the water landing and not during the flight.

The Respondent stated that he made a complete water landing on the surface of Lac Poulin for at least 10-12 seconds. This version is corroborated by the Respondent's three witnesses whereas, according to the Respondent, the Minister's witnesses were probably blinded and could not properly observe his manoeuvre. The Respondent's witnesses stated unanimously that the paraplane did not stop on the surface of Lac Poulin and took off again immediately. The Respondent's witnesses also confirmed that they saw someone "get off," "land" or "leave the cabin" during the water landing.

In this regard, the Minister's evidence that there was no water landing is similar to that provided for the first offence. The Tribunal's earlier comments about the findings on this evidence also apply to this offence. The Tribunal finds the Respondent's defence based on glare to be less convincing than the corroborated statements of the Minister's disinterested witnesses. The Respondent's witnesses confirmed that the paraplane flown by him did not stop on the water. Moreover, the Respondent himself stated that it would have been risky to attempt to fully stop the paraplane without having conclusively tested for buoyancy after the modification. The person therefore left the paraplane while it was technically still in flight in the vicinity of Lac Poulin.

We are satisfied with the evidence submitted by the Minister and confirm the Minister's decision to assess the monetary penalty of $250 for the fourth offence.

Second Offence/Appendix A to the Notice of Assessment

The Minister alleged that the Respondent had operated a Sea-Bow paraplane registered as C-IGPI, at a distance of less than 500 feet from the cottages located on the shores of Lac Poulin, on July 14, 2002, at about 20:15 hours local time, contrary to paragraph 602.14(2)(b) of the CARs.

In order to establish the Respondent's culpabililty, the Minister must establish all the essential elements of the alleged offence on a balance of probabilities. The Minister must prove that the Respondent operated the said paraplane, at a distance of less than 500 feet from the cottages located on the shores of Lac Poulin, except where conducting a take-off, approach or landing, on the date and time mentioned in the notice of assessment.

The Tribunal does not have evidence of all the essential elements of the alleged offence to prove, on the balance of probabilities, that the Respondent is proven guilty.

In our view, the Minister has not been able to prove that at about 20:15 hours local time, the Respondent was flying aboard the Sea-Bow and that he came back to fly over the cottages, even less to be able to prove that he flew over them at a distance of less than 500 feet.

Mr. Latulippe and Mrs. Doyon did indeed mention during their testimony that the motorized parachute went very close (30 feet) to the cottage of the Respondent's parents. However, Mr. Latulippe mentioned that he was unable to identify the person at the controls of the paraplane that came back at about 20:15 hours. In view of the incomplete evidence submitted, the Tribunal is unable to attribute this offence that occurred on July 14, 2002, at about 20:15 hours local time, to the Respondent.

DECISION

We conclude that the Minister has shown, on the balance of probabilities, the following alleged offences, and confirm the Minister's decision to assess the accompanying monetary penalties:

First offence $250

Third offence $250

Fourth offence $250

Total: $750

The Minister has not proven all the essential elements of the second offence. Accordingly, we reject the $250 monetary penalty assessed for this charge.

Suzanne Racine
Member
Transportation Appeal Tribunal of Canada


[1] See section 401.19 of the CARs.

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

[3] Subsection 602.29(4) of the CARs.

[4] Subsection 602.29(5) of the CARs.

[5] Exhibits M-8 and M-10; see also section 401.19 of the CARs.


Appeal decision
Caroline Desbiens, Faye H. Smith, James E. Lockyer


Decision: March 9, 2004

TRANSLATION

The appeal is dismissed and the monetary penalties assessed at the Review Hearing are confirmed. The monetary penalty of $750 is to be made payable to the Receiver General of Canada and sent to the Tribunal within fifteen days of receipt of this determination.

An Appeal Hearing on the above matter was held Friday, January 30, 2004, at 13:45 hours at the Courthouse in Saint-Joseph-de-Beauce, Quebec.

BACKGROUND

The background of this case is set out in the Review member's ruling dated November 5, 2003:

On April 7, 2003, the Minister served the Respondent, Mr. Stéphane Giguère, with a Notice of Assessment of Monetary Penalty in the amount of $1,000 pursuant to section 7.7 of the Aeronautics Act for having contravened paragraphs 602.14(2)(b) and 602.29(1)(e) and subsection 602.25(2) of the Canadian Aviation Regulations (CARs).

The Minister charged the Respondent with the following four alleged offences:

(1) having operated, on July 14, 2002, at about 19:30 hours local time, contrary to paragraph 602.14(2)(b) of the CARs, a Sea-Bow paraplane, model B-2, registered as C-IGPI, at a distance of less than 500 feet from a vessel in the vicinity of Lac Poulin, Quebec;

(2) having operated, on July 14, 2002, at about 20:15 hours local time, contrary to paragraph 602.14(2)(b) of the CARs, a Sea-Bow paraplane, model B-2, registered as C-IGPI, at a distance of less than 500 feet from cottages situated on the shores of Lac Poulin, Quebec;

(3) having operated, on July 14, 2002, at about 19:30 hours local time, contrary to paragraph 602.29(1)(e) of the CARs, a Sea-Bow paraplane, model B-2, registered as C-IGPI, while carrying another person on board;

(4) as pilot-in-command of a Sea-Bow paraplane, model B-2, registered as C-IGPI, having permitted, on July 14, 2002 at about 19:30 hours local time, contrary to subsection 602.25(2) of the CARs, a person to leave the paraplane during flight in the vicinity of Lac Poulin, Quebec.

The Minister assessed a monetary penalty of $250 for each offence, for a total of $1,000.

As the Respondent had not paid the amount of $1,000 by the deadline of May 13, 2003, the Transportation Appeal Tribunal of Canada duly convened this hearing.

A Review Hearing was held in Saint-Joseph-de-Beauce, Quebec, on August 25 and 26, 2003. The Review member, Suzanne Racine, rendered a review determination on November 5, 2003. She concluded as follows:

The Minister has not proven all the essential elements of the second offence. We therefore reject the assessment of the monetary penalty for this charge. The Minister has proven, on the balance of probabilities, the alleged events of the first, third and fourth offences mentioned in the Notice of Assessment of Monetary Penalty issued April 7, 2003, and we uphold the Minister's decision to assess the monetary penalties relating thereto, for a total penalty of $750. This amount is to be made payable to the Receiver General for Canada and sent to the Civil Aviation Tribunal within 15 days of receipt of this determination.

The Review Determination was based, inter alia, on the Appellant's admission to the investigators that he had made the flight in question with his paraplane C-IGPI at a distance of less than 500 feet from a vessel while carrying a passenger on board. This determination was also based on testimony from the Minister's independent witnesses indicating an altitude of 25-30 feet above the water craft, that the passenger had jumped while the paraplane was airborne and that the paraplane and the Sea-Doo were racing. After assessing the credibility of the Appellant's witnesses versus those of the Respondent Minister and fully assessing the evidence, the member did not accept the Appellant's defence that he was apparently conducting an instructional flight, was testing his floats in flight and had made a water landing because of an emergency situation, namely, a technical problem with a float.

APPEAL

Mr. Stéphane Giguère appealed this determination by letter received at the office of the Transportation Appeal Tribunal of Canada on November 20, 2003.

In his letter, Mr. Giguère did not accept the determination of culpability for the three offences, and cited grounds of appeal in writing. At the appeal hearing, he cited further grounds of appeal. All these grounds may be condensed into the following four points:

  1. He does not accept the "balance of probabilities" as the burden of proof .
  2. He questions the credibility of the Minister's witnesses.
  3. He stipulated that there was an emergency situation at the time of the incident.
  4. The amount of the penalty was "completely incomprehensible."

First Ground of Appeal — Balance of Probabilities and Burden of Proof

Mr. Giguère questions the applicability of the burden of proof (balance of probabilities) used by the Review member to determine culpability for the violations of the Aeronautics Act and its regulations.

Mr. Giguère argues that the burden of proof used by the Review member to reach her determination is not onerous enough. According to him, a more onerous burden, such as that used in a criminal trial; "beyond a reasonable doubt" should be used. Mr. Giguère seems to believe that if the burden of "beyond a reasonable doubt" had been used in this case, then the Review member's determination would have been different, since the Minister would have had to prove:

  • that the Appellant was not in an emergency situation;
  • that the Appellant was not conducting an instructional flight (the Minister would have had to identify the passenger and shown that the individual was not an instructor);
  • that the Appellant had no problem with the floats while flying over Lac Poulin and was not flight testing them.

The Transportation Appeal Tribunal of Canada is an administrative tribunal, created, among other things, to give citizens the right to appeal charges and decisions of the Minister regarding violations of the Aeronautics Act and its regulations.

Mr. Giguère is correct when he states that the burden used by the Transportation Appeal Tribunal of Canada, namely, the balance of probabilities, is a less onerous burden than that used in criminal cases. However, the use of the burden on the balance of probabilities is the standard in Canada for administrative tribunals.

Sara Blake, at page 66 of her treatise Administrative Law in Canada,[1] clearly defines the burden of proof applicable to an administrative tribunal in Canada.

In tribunal proceedings, the standard of proof is the balance of probabilities. This standard is less onerous than the standard imposed in criminal cases where, to succeed, the Crown must prove that an offence occurred 'beyond a reasonable doubt'. If, at the end of a tribunal hearing, on all the credible evidence, it has been proven that the events probably occurred, the case has been proven.

At page 4, she says: "No tribunal has unlimited powers. Tribunal powers are granted by statute and defined and limited by statute."

And, at page 109, the author states: "Being created by statute, it [an administrative tribunal] has only those powers conferred on it by statute."

Subsection 15(5) of the Transportation Appeal Tribunal of Canada Act (TATC Act) stipulates:

(5) In any proceeding before the Tribunal, a party that has the burden of proof discharges it by proof on the balance of probabilities [ours italics].

This section has codified the rule applicable before this Tribunal since its first appeal case.[2]

To come back to the author Blake, an administrative tribunal, such as the Transportation Appeal Tribunal of Canada, cannot go against its constitution, namely, the TATC Act. The Tribunal is bound by this legislation. The statute states that the burden of proof is the "balance of probabilities." Therefore, this Tribunal can reach only one conclusion: the Review member used the appropriate burden of proof in this case, that is, the Minister must demonstrate on the balance of probabilities the elements of the alleged offences. The member also rightly judged that once the Minister had proven, on the balance of probabilities, all the elements of the offences, namely:

  • that the Appellant flew his paraplane less than 500 feet from the vessel;
  • that he was carrying a passenger during this flight;
  • that the passenger left the cockpit to jump into the lake while the paraplane was in flight;

the Appellant had to prove the exceptions to these offences or his defence on the balance of probabilities, that is, that he was conducting an instructional flight, that he was testing the floats in flight and that he had to make a water landing because of an emergency situation.

Second Ground of Appeal — Credibility of the Witness

Mr. Giguère had a great deal of difficulty accepting the Minister's witnesses' testimony and therefore did not see how the Review member was able to accept the version of events given by those witnesses. He argued that his witnesses were as good as those of the Minister and that their testimony should have been given more credibility. For example, he did not see how the Minister's witnesses were able to determine the altitude of his paraplane while he was flying over Lac Poulin. He said that each time he flew over Lac Poulin on July 14, 2002, he was at an altitude of 500 feet, and at the appeal hearing he asked: How had the Minister's witnesses been able to determine, for example, that he was 475 or 485 feet, rather than 500 feet, above the lake?

The transcript of the proceedings clearly indicates that the Minister's witnesses said that Mr. Giguère flew at about 25 to 30 feet above the lake. The Review member came to the following conclusion regarding the altitude he was flying over the lake:

All the witnesses, both those of the Minister and those of the Respondent, agree that Mr. Stéphane Giguère's paraplane flew very low coming close to a Sea-Doo that was on Lac Poulin on July 14, 2002, at about 19:15 hours local time. The witnesses also agree on the paths followed by Mr. Giguère's paraplane on the two overflights that day.

After having heard and considered all the evidence of the Minister's witnesses and that of Mr. Giguère, the Review member came to the following conclusion regarding the witnesses' testimony heard at the Review hearing:

It is important to note that the Tribunal must consider diametrically opposed versions. It is up to the Tribunal to determine which of the two, in light of the circumstances, probably reveals the truth. Specifically, the Tribunal must first determine whether the flight of July 14, 2002, falls within one of the exceptions set out above or whether the Respondent conducted, within the meaning of subsection 602.14(2) of the CARs, an approach or water landing on Lac Poulin. It must then assess the conflicting evidence that has been presented to it.

To this end, the authors Sopinka and Lederman[3] propose the following test:

...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...

The Review member considered, and summarized in her ruling, the examinations and cross-examinations of all the witnesses. For reasons she explained very clearly, the Review member favoured the Minister's witnesses' testimony. At page 15, she said: "Their [the Minister's witnesses'] recollection of the events that took place on July 14, 2002, seems to us to be credible and consistent."

As to the evidence presented by the Respondent, she states, at page 15: "However, the Tribunal is puzzled by the Respondent's explanations of the said low flights."

After having examined the Respondent and the Minister's evidence, and after having considered all aspects of his testimony, the Review member concluded, at page 16 of her ruling, that the version presented by the Minister's witnesses was more probative and more representative of the events that occurred the evening of July 14, 2003, at Lac Poulin.

In view of her findings of fact, the question of the power of the Appeal Panel, in these circumstances, must be considered.

The law on this question is quite clear. In Minister of Transport v. Thomas Ritchie Phillips,[4] the Appeal Panel of the Civil Aviation Tribunal said:

The hearings officer is in the best position to be able to determine which evidence on the record he prefers; which evidence when in conflict with or inconsistent with other evidence he is prepared to accept. Unless the findings of the hearings officer are patently unreasonable and cannot be supported by the testimony - under oath - the Appeal Tribunal should be reluctant to substitute its findings. That is, the determination of the credibility of witnesses is best left with the trier of fact at first instance [our italics].

In Trent Wade Moore v. Minister of Transport[5] the Appeal Tribunal stated:

I am satisfied that a finding of fact by the Hearing Officer should only be overturned on one of the two grounds. The first is an entire absence of evidence to support it, which raises a question of law, (R. v. Corbett, 25 C.R.N.S. 296). The second is, notwithstanding that there is some evidence concerning the finding, it is none-the-less unreasonable and incapable of being supported by the evidence. Apart from these limited instances, an Appeal Tribunal, hearing an appeal on the record should not interfere with the fact findings of the hearings officer [our italics].

This distinction may be subtle, but it is vital both to the preservation of the integrity of the Appeal process and the safeguarding of the fundamental rights of the individual.

In Christian Albert v. Minister of Transport,[6] the Civil Aviation Tribunal stipulated:

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.

The Tribunal in Albert cited Faryna v. Chorny[7] in which the British Columbia Court of Appeal stated, regarding the assessment of testimony:

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 [our italics].

After having considered the law regarding this issue of credibility of witnesses and the Review member's findings and having read the transcript of the proceedings, and after having heard Mr. Giguère at the appeal, it seems to us that the version of events accepted by the Review member was not "patently unreasonable." Moreover, this version is one that is entirely supportable by the evidence submitted at the hearing. We therefore see no reason to alter her findings of fact.

Third Ground — Emergency Situation

Mr. Giguère repeated his argument at the hearing that at the time of flying over Lac Poulin, he was in an emergency situation owing to the fact that a float attached to the paraplane had become detached during flight. He decided to land on the lake to reattach the float. The fact that there was, an "emergency," in his view, is a valid defence to the charges brought against him.

Mr. Giguère testified that he was accompanied during his flight by a flight instructor who was also an Air Canada pilot. He had never identified this person and the individual did not testify at the hearing. He stated that this person had returned the float to its proper position while the paraplane landed on the water for 10 to 12 seconds. This person then left the paraplane and was picked up by Mr. Giguère's sister, who was following the paraplane on a Sea-Doo while she was in the water. The person was taken to the Giguère cottage on the lakeshore by Sea-Doo and then left the scene.

As mentioned earlier, the Minister has the burden of proving each of the essential elements of the alleged offences on the balance of probabilities (see Springdale Aviation Ltd. v. Minister of Transport[8]). Once the Minister has discharged this burden, the Tribunal has no choice but to find the alleged offender liable for the offences with which he is charged, unless, for example, he raises a defence or even provides a version of events that is more probable than that of the Minister. In order to succeed, Mr. Giguère needs to provide a version of events that is more probable than that of the Minister.

The Review member stated, at page 15 of her Review Determination:

However, the Tribunal is puzzled by the Respondent's explanations of the said low flights. If these low flights have resulted from an emergency situation, as the Respondent has submitted, why were the RCMP officers Tremblay and Picardis not informed of this during their meeting on July 24, 2002, that is ten (10) days following the incident? Why did he not do the same with Mr. Carrière of Transport Canada when he signed the statement of June 20, 2003? The Respondent did not mention the emergency situation he had faced that day until the day of the hearing. We fail to understand why the Respondent did not want to reveal this crucial element to the investigators. Mr. Giguère has told us that, after consulting with acquaintances, it was suggested that he say as little about it as possible, since the burden of proof to determine the causes of the offence was on the Minister of Transport. Contrary to his assertion, it is not up to the Minister to determine the causes of the alleged offence but rather to establish, on the balance of probabilities, the existence of each essential element that led to the offence. Under normal circumstances, the Respondent, who at that time had the burden of proof, should have submitted prior to the day of the hearing that all the necessary precautionary steps had been taken. Why not just simply admit that the low-altitude flight was the result of a float test that went wrong and that an emergency situation arose?

And, at the same page:

The cross-examination of the Minister's witnesses revealed that none of them had noticed that the paraplane had floats. The Tribunal does not believe that their testimony is tainted by the fact that they do not recall whether or not the paraplane was equipped with floats. The witnesses had no knowledge of ultra-light aeroplanes. They are uninitiated observers who have proved to be honest in their description of the paraplane, not hesitating to stick to the facts and details they accurately recalled. Mr. Gendreau did not hesitate to confirm that he "had no idea who was flying the paraplane" and, moreover, that he did not know the Respondent. Their recollection of the events that took place on July 14, 2002, seems to us to be credible and consistent.

The Respondent called his sister and two family friends as witnesses. These witnesses, related through blood or friendship, testified relatively briefly regarding the events of July 14, 2002. Messrs. Morin and Poulin appeared especially intimidated by the process. They do not clearly recall the events, and their version of the facts in cross-examination struck us as vague, even evasive, with regard to what the floats looked like. They obviously did not provide more information than was necessary. Ms. Giguère was a little more talkative, but it was not until undergoing cross-examination that she elaborated on the nature of the problem her brother seemed to have experienced on July 14, 2002. Ms. Giguère was the only person that figured the Respondent had "a problem." This impression probably resulted from her conversation with her brother to test the floats on the Sea-Bow prior to the flights of July 14, 2002. She even referred to the fact that her brother would stay 500 feet from her but might possibly lose altitude, as though the Respondent had decided ahead of time to fly very low.

Ms. Giguère and Mr. Poulin mentioned that someone on board the paraplane left during the brief water landing and knocked the float back into place before the paraplane took off again. None of the Respondent's witnesses knew this person even though Ms. Giguère took her back to her parents' cottage on her Sea-Doo and Mr. Morin was there at that time. The Respondent even refused to reveal the person's name for fear she would suffer negative consequences from her employer. It is not clear, in light of Ms. Giguère and Mr. Poulin's testimony, whether the instructor leaned towards the Spiros/floats before or after jumping into the water. The Respondent told the RCMP investigators that his sister had jumped below the paraplane, then subsequently argued that he had never made such a statement, and finally told Transport Canada that the person was an Air Canada pilot.

And further on:

All testimony available to us, for both the Applicant and the Respondent, is to the effect that there was indeed a second occupant aboard the paraplane flown by the Respondent, on the date and time specified in the notice of assessment. Clearly there was a passenger on board. Mr. Stéphane Giguère first admitted to Corporal Tremblay and to Constable Paradis that his sister was on board on July 14, 2002 (M-5). The Respondent then changed his version, admitting to Mr. Carrière of Transport Canada (M-13) that the person was an Air Canada pilot, but he would not identify the individual.

[...]

In his defence, the Respondent confirmed that he operated the model B-2 Sea-Bow registered as C-IGPI on July 14, 2002, accompanied by an Air Canada pilot whose name he prefers to withhold in order to protect the person's anonymity.

The Review member concluded, after examining all of the testimony, that the existence of an emergency at that time was the version less probative and less representative of the events which occurred on the evening of July 14 at Lac Poulin. It is clear that she preferred the version of the Minister's witnesses that the Appellant was racing with the Sea-Doo at a low altitude over Lac Poulin. It is important to underscore her conclusion with respect to Mr. Giguère's allegation of an emergency. Her conclusion is found at page 16:

These elements suggest that the Respondent [Mr. Giguère] is attempting to conceal or protect information and prevent the Tribunal from being convinced, on the balance of probabilities, that the Respondent's version is more probative and better represents the events that actually took place than those submitted by the Minister's witnesses.

This conclusion is entirely reasonable in the circumstances, and in view of the criteria for intervention by an appeal tribunal set out earlier, this Tribunal does not see any reason to alter the Review member's decision regarding the existence of an emergency situation.

Fourth Ground — Amount of the Penalty

The Review member's determination was as follows:

We conclude that the Minister has shown, on the balance of probabilities, the following alleged offences, and confirm the Minister's decision to assess the accompanying monetary penalties:

First offence $250

Third offence $250

Fourth offence $250

Total: $750

The Minister has not proven all the essential elements of the second offence. Accordingly, we reject the $250 monetary penalty assessed for this charge.

Mr. Giguère stated in his written appeal petition that:

I have already lost three days' work in addition to the continuing trouble for which I do accept a certain part of the blame, but $750 is completely incomprehensible. Are you aware of what you have to do to get such a penalty in a criminal matter? All I did was bother three clowns at Lac Poulin. [Translation]

The purpose of the Aeronautics Act and its regulations is to promote the safety in the aviation community in Canada as well as the public.

In Minister of Transport v. Kurt William M. Wyer,[9] the Tribunal stated:

The underlying principle, indeed the purpose, of the enforcement of these matters is the protection of society. This becomes the primary tool in determining the level of sanction called for by any individual misdemeanor.

"Protection" addresses the rights of pilots as well as the physical security of persons and property affected by the performance of his duties.

Flying at a low altitude is considered a serious offence which, in some circumstances, can result in serious consequences for the paraplane pilot, his passengers and the general public. Carrying a passenger on board when the regulations forbid this for safety reasons is also a serious offence.

The penalties used in these circumstances convey a message of deterrence in order to ensure that paraplane operators do not engage in unsafe practices.

In the case of Mr. Giguère, a monetary penalty of $250 per charge was assessed against him. This is a minimal penalty for each of these offences in the circumstances. The amount of $750 for the three offences is reasonable in the circumstances.

DECISION

The appeal is dismissed and the penalties assessed at the Review Hearing are confirmed.

Reasons for Appeal Decision:

Mr. James E. Lockyer, Member

Concurring are:

Mrs. Faye Smith, Chairperson
Ms. Caroline Desbiens, Member


[1] Sara Blake, Administrative Law in Canada, 3rd ed., Toronto, Butterworths, 2001.

[2] Thomas Ritchie Phillips v. Minister of Transport, CAT File No. C-0014-33, appeal, 1987.

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

[4] CAT File No. C-0014-33, appeal.

[5] CAT File No. C-0138-33, appeal.

[6] CAT File No. Q-1878-33, appeal.

[7] (1951) 4 W.W.R. (N.S.) 171.

[8] CAT File No. A-1048-10.

[9] CAT File No. O-0075-33.