Decisions

CAT File No. W-1246-02
MoT File No. SAP 6504-P360223-26954

CIVIL AVIATION TRIBUNAL

BETWEEN:

Donald Frederick Seymour, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s 3, 6.9, 8.4(2), 17(1)
Air Regulations, C.R.C. 1978, c. 2, s 101, 104, 216(2), 218, 408, 520(1), (2), 521.1, 534(2)a)
Aircraft Marking and Registration Regulations (Air Regulations, Series II, No. 2), s 17(2), 32(1)
Private Aircraft Minimum Liability Insurance Regulations (Air Regulations, Series VI, No. 10), s 3, 5(1)

Proof of Liability Insurance, Certificate of Registration


Review Determination
Ken Clarke


Decision: September 24, 1996

Count 4 of the suspension is dismissed. Consequently the suspension is reduced from ten days to eight days. Said suspension shall begin on the fifteenth day following the service of this determination.

The Review Hearing on the above matter was held Wednesday, September 4, 1996 at 10:00 hours at the Court House in Grande Prairie, Alberta.

BACKGROUND

On July 20, 1995, while conducting Transport Canada business, Inspectors Hessberger, Cole, and Corporal McConnell had occasion to land at the Fort Nelson, B.C. airport. The aircraft C-FGCO was observed on the ramp with activity around it, including loading of a possible overweight cargo. Inspector Hessberger proceeded to identify the pilot-in-command and carry out an inspection. Required documentation was not submitted when requested.

Upon return to Vancouver the file was forwarded to Edmonton for appropriate regional handling. Inspector Goyer completed the investigation. Subsequently a fine was assessed and the pilot's licence suspended.

The matters were brought before the Civil Aviation Tribunal, and a Review Hearing was held in Grande Prairie, Alberta on September 4, 1996.

ALLEGATIONS

The Notice of Assessment of Monetary Penalty reads in part as follows:

(CAT File No. W-1254-33)

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 the following provision(s):

Count #l: Section 825(1)(a) of the Air Regulations. In that on the 20th of July 1995, at Fort Nelson, British Columbia, you flew, as pilot-in-command, aircraft C-FGCO without having carried your pilot licence on board the aircraft with you.

Count #2: Section 825(1)(c) of the Air Regulations. In that on the 20th of July 1995, at Fort Nelson, British Columbia, you flew, as pilot-in-command, aircraft C-FGCO without having carried your certificate of proficiency of the operator of radio Apparatus issued under the Radio Act, on board the aircraft with you.

Count #3: Section 825(1)(c) of the Air Regulations in that on the 20th of July 1995, at Fort Nelson, British Columbia, you flew, as pilot-in-command, aircraft C-FGCO without having carrier [sic] on board the licence for the radio Apparatus in the aircraft issued under the Radio Act.

The total assessed penalty of $150.00 was not paid on or before April 2, 1996 as required. The Minister of Transport therefore brought the matter before the Civil Aviation Tribunal.

The other matter, that of a suspension, was brought before the Civil Aviation Tribunal by the document holder, Mr. D. Seymour. The Notice of Suspension reads in part:

(CAT File No. W-1246-02)

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):

  1. Air Regulations Series II, No. 2, Section 17(2) in that you operated aircraft C-FGCO, Piper PA-23-250, on or about the 27th of June 1995, at or near Grande Prairie, Alberta while the aircraft was not registered in Canada.

  2. Air Regulations Series II, No. 2, Section 17(2) in that you operated aircraft C-FGCO, Piper PA-23-250, on or about the 19th of July 1995, at or near Fort St. John, British Columbia while aircraft was not registered in Canada.

  3. Air Regulations Series II, No, 2, Section 17(2) in that you operated aircraft C-FGCO, Piper PA-23-250, on or about the l9th of July 1995, at or near Helmet, British Columbia while the aircraft was not registered in Canada.

  4. Air Regulations Series II, No. 2, Section 17(2) in that you operated aircraft C-FGCO, Piper PA-23-250, on or about the 20th of July 1995, at or near Fort Nelson, British Columbia, while the aircraft was not registered in Canada.

  5. Air Regulations Series VI, No. 10, Section 5(1) in that you operated aircraft C-FGCO, Piper PA-23-250 on or about the 20th of July 1995, at or near Fort Nelson, British Columbia, without having carried on board proof of aircraft liability insurance.

The suspension was to come into effect for ten days in April 1996. Two days on each count was assessed in the sanction.

An agreement was reached immediately prior to the Review Hearing to hear both of the above allegations and their related counts at one Review Hearing. It was also agreed that Piper PA-23-250, registration marks C-FGCO, is an aircraft.

My detailed opening remarks brought about an understanding by all parties as to how the hearing would be conducted. There was agreement to make a correction to a spelling error. No other preliminary concerns were identified. Witnesses were then excused until called and sworn. One interested observer remained for most of the hearing.

LAW AND DEFINITIONS

Subsection 825(1) of the Air Regulations:

825. (1) ... no person shall fly an aircraft, other than a hang glider, unless there is carried on board the aircraft

(a) the licences or permits of all members of the flight crew;

(...)

(c) the licence for the radio apparatus in the aircraft and the certificate of proficiency of the operator of the apparatus issued under the Radio Act; and

(...)

Subsection 17(2) of the Air Regulations, Series II, No. 2:

(2) ... no person shall operate an aircraft in Canada unless it is registered in Canada, ...

Section 5 of the Air Regulations, Series VI, No. 10, Private Aircraft Minimum Liability Insurance Regulations:

5. (1) No owner or operator of a private aircraft shall operate that aircraft unless there is on board that aircraft proof that the liability insurance subscribed for in accordance with these Regulations is being carried.

(2) The owner or operator of a private aircraft shall, at the request of the Minister, produce proof that the liability insurance subscribed for in accordance with these Regulations is being carried.

Subsection 808(1) of the Air Regulations:

808. (1) Every person who

(a) is the holder of any licence, certificate, or permit issued under these Regulations;

(b) is the owner, operator or pilot-in-command of any aircraft in respect of which any certificate log book or other document is kept, or

(c) has in his possession any licence, certificate or permit issued under these Regulations or any log book or other document relating to any aircraft or commercial air service,

shall upon demand,

(d) produce the licence, certificate, permit, log book or other document, as the case may be, for inspection by a peace officer, officer of customs or immigration or any person thereto authorized by the Minister, or

(...)

Subsection 8.4(2) of the Aeronautics Act:

(2) The operator of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against ...

Subsection 32(1) of the Air Regulations, Series II, No. 2:

32. (1) ... where the legal custody and control of a Canadian aircraft changes, the registration of the aircraft expires.

Subsection 8.7(1) of the Aeronautics Act:

8.7 (1) ... the Minister may

(a) enter any aircraft, ... for the purposes of making inspections relating to the enforcement of this Part;

(b) enter any place for the purposes of an investigation of matters concerning aviation safety;

(c) seize anything found in any place referred to in paragraph (a) or (b) ...

(d) detain any aircraft ...

The Gage Canadian Dictionary defines control as "power or authority; command ..." and custody as "the keeping; charge; care ...."

Control is defined in the Merriam-Webster Dictionary as "power to direct or regulate" and custody as "immediate care or charge."

EVIDENCE

As Case Presenting Officer for the Minister, Mr. Pollock entered into evidence the signed pre-hearing agreement as Exhibit M-l.

It was explained that Inspector L. Goyer was out of the country, and his affidavit with twenty-four pages attached was received as Exhibit M-2. The document showed that the aircraft in question was sold to Swanberg Bros. Trucking Ltd. on June 26, 1995. Also included were certified copies from the Journey Log of C-FGCO that were signed by Mr. Seymour on June 27, 1995 and July 19 and 20, 1995. Several pages of copies of photographs were taken during the inspection. Correspondence included letters to or from the initial inspector (Mr. Hessberger), Inspector Goyer, Mr. Seymour, and the Minister of Transport. Copies of the original inspection checklist, the case report, the movement strip from Flight Service and the amended allegation were also submitted.

Inspector Hessberger then testified and detailed his inspection of July 20, 1995. He explained why the inspection had been carried out, and the process of it. The pilot-in-command was identified as Mr. Seymour, and it was noted the aircraft owner was on board. A listing of documents not produced on demand was made. The Aircraft Document & Safety Equipment Checklist was entered as Exhibit M-3.

The inspection was described as non-confrontational.

Entered as Exhibit M-4 were three blank pages of application for Certificate of Registration. Photographs taken by Inspector Hessberger were not allowed to be entered as evidence because the negatives were not available as proof of the originals. The photos are duplicated however in M-2 and identified "E through J".

Also disallowed was the original uncompleted copy of the Certificate of Registration in the seller's name. Due to an unknown reason, Mr. Seymour had not received a copy. Inspector Hessberger stated the cause for the inspection was concern of an overloaded condition. He also said that he attempted to call Edmonton in order to solve the registration issue. In testimony it was again stated that an interim certificate of registration was not available as required. Earlier it was testified that Mr. Seymour failed to produce his pilot licence, personal radio licence, aircraft radio licence, or proof of insurance.

In cross-examination Mr. Seymour asked but did not receive a definition of "legal custody and control".

Inspector Cole was presented as the next witness. He confirmed Inspector Hessberger's testimony. It was stated that the inspection was conducted with professional behaviour at all times. Again Mr. Seymour was identified as pilot-in-command. The appropriate transfer papers were again said not to be complete. It was described how the Journey Log Book was taken to the RCMP office for photocopying.

In cross-examination the question was again raised about "custody and control". Further questioning explored the relationship between Transport investigators and the new aircraft owner.

In redirect Inspector Cole stated he became aware of the owner's presence while attending the aircraft.

Corporal McConnell was the last witness for the Minister. He stated that he was assisting the Ministry in other matters and observed Inspector Hessberger using a checklist for the inspection. According to the witness, Mr. Seymour was identified as pilot-in-command, and introduced the owner. He confirmed the asking for documentation, and stated the inspection was conducted in a business like manner.

Mr. Seymour requested additional time in order to secure affidavits from witnesses who were working in "the bush" and one living in Fort Nelson. As the nature of "oil patch" work could easily make an individual unavailable, fourteen days were granted. The original sworn statements were to reach the Civil Aviation Tribunal office before September 19, 1996. Copies were to be sent to Mr. Pollock, care of Transport Canada in Edmonton, by the same date. A conference call on September 20 was placed to both parties by Mr. Clarke to determine if the Minister required equal time to respond. One affidavit, sworn by a Mr. Swanberg was received in the Tribunal office, followed by a response from Mr. Pollock. The significant point of Mr. Swanberg's statement challenged the testimony of the Minister's witnesses. I find, however, those same witnesses credible. At the same time, there was no new influential evidence that would alter my decision.

Mr. Seymour further stated that he had not received the disclosure document package until approximately ten days before the Review Hearing. Exhibit M-5 confirms the receipt of the information as August 26, 1996.

According to Mr. Seymour the new owner had custody of the aircraft. That person was present at the time of inspection but was not requested to produce documents.

Submitted as Exhibit D-l is a decision from the Court of Appeal of Alberta. The decision of that case was to grant an absolute discharge. Exhibit D-2 is a copy of a letter of reply from the Minister of Transport to Mr. Seymour's letters of November 20 and 30, 1995. A Resume of Alleged Offender was given as Exhibit D-3. In that same resume was a record of a previous conviction that may have prejudiced this case.

Mr. Seymour said that the aircraft was in fact registered in Canada as there was still a registration in effect. He also noted the inspectors had no authorization to remove the Journey Log. Furthermore, the seller had notified the Minister of the sale. The element of insufficient time for registration was suggested. Again the position that his rights had been violated was put forward.

ANALYSIS

As both presenting parties were new to the Tribunal process, I noted in my opening remarks that as much latitude as was reasonably possible would be allowed. A substantial amount of documentation was referred to, and at times required certain freedom of movement in order to provide a fair hearing.

I find the investigators acted within their legal rights, including the securing of journey log copies. As this Tribunal does not see a violation of Mr. Seymour's rights, I will not address the issue further.

Inspector Goyer's submitted evidence by affidavit and the other witnesses for the Minister clearly prove the case. In particular, the aircraft sale taking place on June 26, 1995 and registration application being completed after the inspection is in itself significant. The application is dated July 21, 1995 and is initiated by Inspector Hessberger as incomplete. The Air Regulations stipulate that registration expires when custody and control change, and no doubt those changes occurred. There is a provision within the Air Regulations, however, for an Interim Certificate of Registration. Had this been followed, there would be no argument of insufficient time. The only place for debating who was in custody and control was in Fort Nelson with the new owner on board. I acknowledge that person may have exerted some influence over the pilot-in-command at that particular time. This certainly does not rest well with me, and I would hope it was not so.

No defence was made regarding proof of liability insurance, pilot licence, or radio licences. The Minister has proven his case regarding these documents.

I find no evidence the Minister's representatives acted inappropriately or outside of their jurisdiction. In fact I am impressed Inspector Hessberger attempted to solve the registration problem by telephone.

I take note the Minister has the prerogative of which individuals may be pursued for prosecution. The sanctions sought by the Minister are far from the maximum, and I find no evidence of referral to any past allegations or convictions; and note that prosecution could have been much more aggressive.

Entries in the Journey Log prove that certain flights were undertaken by Mr. Seymour while the aircraft was not registered is already established.

DETERMINATION

(W-1254-33)

I uphold the sanctions imposed by the Minister on all three counts and confirm the $150.00 monetary penalty.

(W-1246-02)

Count 4 is dismissed. I uphold the sanctions imposed by the Minister on all other counts. Consequently the suspension is reduced from ten days to eight days.

Ken Clarke
Member 
Civil Aviation Tribunal


Appeal decision
Allister W. Ogilvie, David S. Ahmed, Fred W.R. Clarke


Decision: May 2, 1997

We find that the Member erred in law in dismissing count 4 when he accepted evidence which proved the allegation. He did not err as regards to counts 1, 2 and 3. We find he erred in law regarding count 5 as the provision alleged to have been contravened did not apply in the circumstance. In the result, Mr. Seymour's licence is suspended for 2 days on each count 1, 2, 3 and 4, for a total of 8 (eight) days to commence on the fifteenth day following service of this determination.

An Appeal Hearing on the above matter was held before three designated Tribunal Members, Monday, February 24, 1997 at 10:00 hours at the Law Court Building in the city of Grande Prairie, Alberta.

BACKGROUND

The combined Review Hearings arose from two sets of allegations. One, that Mr. F. Seymour flew an aircraft when he did not have on board his pilot licence, his radio operator's licence and the radio apparatus licence (CAT File No. W-1254-33). Two, that Mr. F. Seymour operated an aircraft, on certain dates, when the aircraft was not registered in Canada and that he operated the aircraft without having carried on board proof of liability insurance (CAT File No. W-1246-02). The separate allegations each constituted a separate file but, by agreement, were heard together.

A Civil Aviation Tribunal Member, Mr. K. Clarke, heard these allegations together at a Review Hearing, September 4, 1996 in Grande Prairie, Alberta.

Regarding having operated an aircraft while the aircraft was not registered in Canada, the Member upheld 3 counts, but dismissed the fourth. He also upheld the allegation that the aircraft was operated without there being carried on board proof of aircraft liability insurance. Consequently, the suspension of Mr. Seymour's licence was reduced from the original 10 days, to 8 days.

Mr. Seymour was not satisfied, and on October 20, 1996 he requested an appeal of the Review Determination rendered by Mr. Clarke. On October 23, 1996, the Tribunal issued a Notice of Appeal.

Note: As the files were heard together, Mr. Seymour provided his reasons for Appeal together. For the sake of clarity we have addressed the files separately and will provide separate reasons for each.

This file involves the allegations that Mr. Seymour operated aircraft C-FGCO on June 27, 1995, twice on July 19, 1995 and once again on July 20, 1995, while the aircraft was not registered in Canada. It was also alleged that he operated the aircraft on July 20, 1995 without having carried on board proof of aircraft liability insurance.

The Member upheld the allegations regarding June 27 and the two on July 19 but dismissed the allegation regarding July 20. He also upheld the allegation that the aircraft was operated on July 20 without having carried on board proof of aircraft liability insurance.

GROUNDS FOR APPEAL

Grounds for Appeal

The Appellant specified four main grounds for appeal in his written application for appeal as follows:

(1) The Civil Aviation Tribunal Member erred at law, and

(2) The Civil Aviation Tribunal Member mis-stated the facts in his decision rendered or stated for fact, evidence which not [sic] produced at the review hearing by the Minister of Transport, and

(3) The Civil Aviation Tribunal Member was biased and therefore deviated from the procedural fairness and natural justice stated to prevail in the Aeronautics Act, and

(4) Any further and other errors that may have been committed by the Civil Aviation Tribunal Member.

Those grounds were stated in regard to both files in issue. At this juncture we will deal only with those specific to this file, but do note that some of the details grounding the various allegations of error are, for practical purposes, identical.

ARGUMENT

The Appellant argued that the Review Hearing Member:

1. erred in law

(a) in that it is unreasonable to rule that someone other than the owner was responsible for the aircraft, in light of the Member having provided definitions of custody and control from two different sources;

(b) that the Member made findings of law regarding legal ownership (of the aircraft), and findings of fact that the owner was present, which would create a legal obligation to overturn the determination of the Minister of Transport;

(c) that the Member stated that the Minister had the prerogative of which individuals may be pursued for prosecution, but that could not mean that the Minister had no boundaries. He furthers this point by saying that the Member must adhere to and apply principles of natural justice, by listening fairly to both sides, and he must apply the boundaries found in the Aeronautics Act, which he failed to do.

2. The Member was biased and therefore deviated from procedural fairness and natural justice in that he:

(a) disregarded evidence that the owner was present on the ramp loading the aircraft,

(b) gave definition whereby he should have found that the new owner had possession, custody and control of the aircraft.

All of which, submits Mr. Seymour, should cause the appeal panel to overturn the Member's finding on review.

The Minister's representative, provided written submissions and oral argument. The basis of the written submission was that the Member's finding of fact and credibility were not unreasonable and that when the Minister had proved all elements of the offence, a defence was not proven on a balance of probabilities.

In oral presentation, she stated that the Appellant's point regarding the prerogative of which individual that may be pursued only served to illustrate the reality of the Minister's discretion. Regarding the issue of bias, she argued that the Respondent's allegations did not show any of the indices of bias.

All of which, she submits, should cause us to uphold the Member's determination.

DISCUSSION

The details grounding the allegations of error in law regarding the definition of custody and control and the consequent responsibility for the aircraft are substantially the same as those found at (b) of the allegation of bias. Therefore, they will be dealt with together in relation to this count.

BIAS

As with the former count, Mr. Seymour's allegations of bias are in reality more in the form of arguments or assertions of his perspective of the facts, but they do not constitute any of the indices of bias, as previously discussed. Therefore, we find no error in that regard.

ERROR IN LAW

The details of Mr. Seymour's allegations of error in law pertinent to this file, contained in his written submission, and in oral argument, address the issue of custody and control, ownership of the aircraft and the consequent responsibility for that aircraft. Closely related to these issues is his argument regarding the Minister's prerogative of which individual to pursue for the alleged offence regarding the aircraft.

These allegations of error are pertinent to this file due to the specific wording of the count.

The Notice of Suspension reads:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):

1. Air Regulations Series II, No. 2, Section 17(2) in that you operated aircraft C-FGCO, Piper-23-250, on or about the 27th of June 1995, at or near Grande Prairie, Alberta while the aircraft was not registered in Canada. (Emphasis added)

This allegation is repeated in 3 (three) subsequent counts which vary only as to the date and location of the alleged offence. Further to section 6.9 an additional count addresses liability insurance in the following form:

5. Air Regulations Series VI, No. 10, Section 5(1) in that you operated aircraft C-FGCO, Piper PA-23-250 on or about the 20th of July 1995, at or near Fort Nelson, British Columbia, without having carried on board proof of aircraft liability insurance. (Emphasis added)

It can be seen that the constituent elements of the offences differ. The first involves the operation of a particular aircraft, on a certain date, while such aircraft was not registered in Canada. The second involves the operation of a particular aircraft, on a certain date, without having carried on board proof of aircraft liability insurance.

These can be compared to the alleged offences in the CAT File No. W-1254-33. There, it was alleged Mr. Seymour, flew as a pilot-in-command, a certain aircraft, on a certain date when specified documents were not carried on board. (i.e. pilot licence, radio operator and radio apparatus licence.)

In our determination in CAT File No. W-1254-33, we concluded that the constituent elements of the offence had been proven. Therefore, the Member did not err in law in his finding that "the Minister has proven his case regarding these documents." His analysis concludes that:

Entries in the Journey Log prove that certain flights were undertaken by Mr. Seymour while the aircraft was not registered is already established.

His usage of "flights were undertaken" does not differentiate between "flew" and "operated".

To come to his conclusion it was necessary to equate "flew, as pilot-in-command" to "operated".

ISSUE – whether a person flying an aircraft as pilot-in-command "operates" in the sense that, that term is used in subsection 17(2) of Air Regulations Series II, No. 2.

It is in this regard that Mr. Seymour takes issue with the Member's finding. During cross-examination, he had asked each Transport witness for a definition of custody and control, but he did not receive an answer that satisfied him.

In his written submission alleging error of law, Mr. Seymour goes into definitions of custody and control, as well as definitions of "operator" and "owner" in the Air Regulations. The gist of his argument is that the Member found the aircraft had been sold, and hence there was a new owner. The definition of owner in respect of an aircraft is the person who has legal custody and control. As well "operator" in the definitions encompasses the person in possession of the aircraft, whether as owner, lessee, hirer or otherwise. The transcript shows that the owner (Swanberg) was present during the investigation process. The Member recognized this in his reasons for determination. (Page 5)

Mr. Seymour argued that given the various definitions one could not argue that anyone but the owner had custody and control and possession of the aircraft so it could not be argued that anyone else was responsible.

In further oral argument he addressed the Member's finding that the operator could be proceeded against pursuant to subsection 8.4(2) of the Act. To that Mr. Seymour said that the owner was the operator.

Mr. Seymour's arguments are worthy of consideration in light of the various definitions and terminology in the Act and Regulations as well as their usage in the notice.

Reading the pertinent legislation shows that both the terms "fly" and "operate" are used at times, seemingly interchangeably. Note the difference in wording of the counts in the two files. In File No. W-1254-33: "on the 20th of July 1995, at Fort Nelson, British Columbia, you flew, as pilot-in-command..." In File No. W-1246-02: "you operated aircraft C-FGCO...on or about the 20th of July, 1995 at or near Fort Nelson...". The same flight grounds both charges. Neither the Act nor the Regulations provide a definitions of those terms.

Upon reading the legislation as a whole it becomes apparent that the terms are used in different contexts and for different purposes. Although fly and operate sometimes seem to be used interchangeably, it is not always so.

This can be seen from the context in which the terms are employed.

The Application section of the Air Regulations provides that:

104. The Minister may make orders or directions prescribing standards for the supervision and control of aeronautics and conditions under which aircraft may be operated and, without restricting the generality of the foregoing, may make orders prescribing standards and conditions

(...)

(g) that will ensure in similar operations throughout the world a level of safety above a prescribed minimum;

(...)

(i) for the dissemination of meteorological information for aircraft operations;

(...)

(l) for the collection, publication and dissemination of aeronautical information required for air navigation and aircraft operations. (Emphasis added)

These expressions of operated/operations are broader than "to fly."

Particular definitions in section 101 – Interpretation – of the Air Regulations are also helpful in the analysis:

"operator" in respect of an aircraft, means the person in possession of the aircraft, whether as owner, lessee, hirer or otherwise and, ...

"owner" in respect of an aircraft, includes

(a) the person in whose name the aircraft is registered

(b) a person in possession of the aircraft as purchaser under a conditional sale or hire-purchase agreement that reserves to the vendor the title to the aircraft until payment of the purchase price or the performance of certain conditions,

(c) a person in possession of the aircraft as chattel mortgagor under a chattel mortgage, and

(d) a person in possession of the aircraft under a bona fide lease or agreement of hire;

"ownership" means having legal custody and control of an aircraft;

"registered owner" means a person to whom a certificate of registration has been issued;

In respect of the term "operator" the Minister's representative asserted during the course of oral argument that the term "or otherwise" found in the definition of "operator" was broad enough to encompass the pilot, and that we could then find him to be the operator. We are unable to concur.

The terms in the paragraph describe specific kinds of possession i.e. – owner, lessee, hirer, all of which have meanings quite limited in scope. We do not think Parliament meant, simply by adding "or otherwise, to bring every conceivable kind of possession into the ambit of the paragraph.

The tenet of statutory construction which supports our conclusion is often described as the "Ejusdem Generis" rule or the Limited Class rule. The rule was defined in National Bank of Greece (Canada) v. Katsikonouris[1] where LaForest J. Stated:

Whatever the particular document one is construing, when one finds a clause that sets out a list of specific words followed by a general term, it will normally be appropriate to limit the general term to the genus of the narrow enumeration that precedes it.

The treatise on statutory construction Driedger on the Construction of Statutes[2], cautions that for the rule to apply, certain conditions must be met.

1) "there must be an identifiable class to which all the specific items set out in the provision belong." (Page 204)

We note here that the specific items: owner, lessee, hirer, denote the possession of the aircraft through types of contract, whether bill of sale, lease or agreement of hire.

2) "The limited class rule does not apply unless the class inferred from the list of specific items is narrower in scope than the general words that follow the list." (Page 205)

We find that the specific items mentioned are narrower than "or otherwise" in that each refers to one in possession pursuant to a type of contract whereas otherwise does not necessarily have that connotation.

3) "The general words must have something to apply to. The limited class rule cannot be invoked if the class inferred from the list of specific items has nothing, apart from those items, to apply to." (Page 206)

In this case the general term "otherwise" can apply to the possession of an aircraft further to other types of instruments. For instance, in the definition of "owner", it is provided that one can possess an aircraft pursuant to various financing instruments such as a chattel mortgage or a conditional sales agreement.

In the result our analysis of the definition of "operator" in section 101, Interpretation, of the Air Regulations, leads us to conclude that the term "or otherwise" in that definition does not make the pilot-in-command of the aircraft the "operator" in absence of the other defining criteria.

A type of operation is also shown in the "Definitions of usages for private aircraft", found on Certificate of Registration application form where it is stated:

Business Aircraft 2 – are aircraft which are primarily used in that sector of general aviation which concerns the operation of aircraft by companies for the carriage of passengers or goods as an aid to the conduct of their business, flown for purposes generally considered as not for public hire and piloted by individuals who hold a private licence and receive no reward or compensation for their duties as crew members. (Emphasis added)

Although this definition does not have legal effect, as it does not form part of the Act or Regulations, it is noteworthy in that it distinguishes between the concepts of "operation of an aircraft" and that of it being "flown" or "piloted."

As well, it is instructive in this case, as it was in the Business Aircraft 2 category in which the aircraft in question was registered the day after the inspection (Appendix A to Goyer's affidavit). Mr. Swanberg's affidavit reveals that the purpose of the flight was to fly his goods to his own site at Helmut. The evidence shows Mr. Seymour piloted the aircraft and that he holds a private licence.

A review of the Air Regulations from Part II through Part VIII, reveals that there are some regulations which seem to use "fly" and "operate" interchangeably. It is of interest to note some examples of this usage.

Part II – Aircraft Airworthiness

Subsection 216(2)

No person shall operate any aircraft unless it is equipped with approved, serviceable and functioning flight instrument systems sufficient to enable the flight crew members to... (Emphasis added)

Section 218

No person shall fly or attempt to fly any aircraft unless

(a) the weight of the aircraft and its load does not exceed the maximum permissible weight... (Emphasis added)

Part IV – Personnel Licensing

Section 408

No person shall fly or attempt to fly as a flight crew member of an aircraft, or otherwise act or attempt to act in the capacity in which a licence issued or validated under this Part or a permit issued under this Part entitles him to act,... (Emphasis added)

Part V – Rules of the Air

Subsection 520(1)

No aircraft shall be operated in such a negligent or reckless manner as to endanger or be likely to endanger the life or property of any person. (Emphasis added)

Subsection 520(2)

Subject to subsection (3), no person shall fly an aircraft in such a manner as to create a shock wave or sonic boom, the effect of which may imperil the safety of other aircraft, be injurious to persons or animals or cause damage to property. (Emphasis added)

Section 521.1

Before taking off from, landing at or otherwise operating an aircraft at an aerodrome, the pilot-in-command of the aircraft shall, in so far as is practicable, satisfy himself of the suitability of the aerodrome for the intended operations. (Emphasis added)

However, certain definitions show that, as regards crew members, the term operate/operation is to be construed narrowly.

101. (1) In these Regulations,

(...)

"crew member" means a person assigned to duty in an aircraft during flight time;

(...)

"flight crew member" means a crew member acting as pilot-in-command, co-pilot, flight navigator, flight engineer or second officer of an aircraft during flight time;

(...)

"flight time" means the total time from the moment the aircraft first moves under its own power for the purpose of taking off until the moment it comes to rest at the end of the flight;

The Aeronautics Act provides a definition of pilot-in-command at section 3 where it states:

"pilot-in-command" means, in relation to an aircraft, the pilot having responsibility and authority for the operation and safety of the aircraft during flight time; (Emphasis added)

The definitions of "crew member" and "flight crew member" in the Air Regulations have in common the restriction of "during flight time". The definition of "pilot-in-command" in the Act specifically shows that the responsibility for the "operation" of the aircraft is restricted to flight time. Therefore, the "operation" of aircraft by the pilot-in-command/flight crew members is construed more narrowly than "operate" in general in that it is only in regard to flight time.

The concept that operation equates to flight time can be seen at section 521.1 of the Air Regulations where it is stated:

Before taking off from, landing at or otherwise operating an aircraft at an aerodrome, the pilot-in-command of the aircraft shall, in so far as is practicable, satisfy himself of the suitability of the aerodrome for the intended operations.

"...taking off from, landing or otherwise operating" shows that operating is a part of the flight time, which, in turn shows that the usage is consistent with the definitions.

These illustrations show that the term operate/operation differs in the context in which it is used. All of which, brings us to consider the regulation in question.

Air Regulations, Series II, No 2 states at subsection 17(2):

(2) Except as otherwise authorized pursuant to subsection (3) or (4) or 36(3), no person shall operate an aircraft in Canada unless it is registered in Canada, in a contracting state or in a foreign state that has an agreement in force with Canada that allows an aircraft that is registered in that foreign state to be operated in Canada. (Emphasis added)

It is this provision which Mr. Seymour is alleged to have contravened.

The transcript shows and the Member found Mr. Seymour was the pilot-in-command for those flights. The count alleges that he "operated" them. Is that so in the context of subsection 17(2)?

A previous Tribunal matter addressed "operator" but in a different context (Minister of Transport v. Michael Davidson and Laminair Aviation Inc. CAT File No. O-0442-37). It was alleged that a certain aircraft flew at less than 500 feet over certain built-up areas contrary to paragraph 534(2)(a) of the Air Regulations which states:

(2) Except as provided in subsections (4), (5) and (6), or except in accordance with an authorization issued by the Minister, unless he is taking off, landing or attempting to land, no person shall fly an aircraft

(a) over the built-up area of any city, town or other settlement or over any open air assembly of persons except at an altitude that will permit, in the event of an emergency, the landing of the aircraft without creating a hazard to persons or property on the surface of the earth, and such altitude shall not in any case be less than 1,000 feet above the highest obstacle within a radius of 2,000 feet from the aircraft; or

(...)

Pursuant to subsection 8.4(2) of the Aeronautics Act a corporation, Laminair, was proceeded against. Subsection 8.4(2) allows an operator to be proceeded against in respect of an offence in relation to an aircraft for which another person is subject to be proceeded against. One of the issues was the Respondent's contention that Laminair was not the operator.

In the factual context, 3 (three) different companies were being run by 3 (three) closely related individuals. The common object of the three businesses was aerial photography. It was during a photo mission that the low flying was alleged to have occurred.

The aircraft was flown by one L.P. Thibault. The Tribunal found that Michael Davidson was the owner of the aircraft, that he was present at the time of the infraction, and that he had care, custody and control of the aircraft. Hence, "not only was he the owner of the aircraft, but in all likelihood he was also the operator".

The indicia of operator was then the custody and control and ownership.

A case from the Alberta Court of Appeal also addressed "operate" in the context of the Aeronautics Act R. v. 264544 Alberta Ltd. and FIX.[3] It must be noted that the case dealt with a commercial air service and the Aeronautics Act of R.S.C. 1970 and was initially proceeded with in provincial court. However, the analysis is of interest.

The accused was alleged to have breached 15 counts of subsection 17(1) of the Aeronautics Act which read:

17. (1) No person shall operate a commercial air service unless he holds a valid and subsisting licence issued under section 16.

The accused did not have a licence under section 16. Instead it acted as agent through a contractual relationship with the licence holder.

The trial judge found the accused had acted as agent and that the authorized actions of an agent bind the principal. Hence he dismissed the charges.

The Court of Appeal found that the question should have been whether an agent who operates an air service for a licensed principal is himself operating an air service and requires a licence. That answer turned on the meaning of subsection 17(1). In that regard the court found:

With respect, the governing rule of interpretation of any statute, including one imposing a penal sanction, is to give the statute that meaning which the words used reasonably bear and which is consistent with the purpose and scheme of the Act.

In our view, the object of the Aeronautics Act is to regulate the safety of commercial air travel. The scheme of the Act is to make this regulation partly by means of tight control over those engaged in the activity through a licensing regime. In this context, it is clear that the meaning of "operate" most consistent with the object and scheme of the Act is that the operator is the person, firm or corporation who has the actual control of the commercial operation of the air service. (Emphasis added)

Although the case may be distinguished from that at hand, the Court of Appeals' finding is nonetheless instructive. The indicia of "operate" was the actual control of the operation.

The evidence shows that Swanberg Trucking, was the new owner of the aircraft as shown by the bill of sale.

The definition in the Air Regulations provides that "ownership" means having custody and control. By definition then Swanberg Trucking had custody and control.

"Operator" means the person in possession of the aircraft, whether as owner or lessee or otherwise. Some argument was made regarding the pilot being in possession of the aircraft, but the definition states "in possession of the aircraft, whether as owner..." Swanberg Trucking was the owner. A principal of the company was in attendance. Swanberg Trucking then fits the definition of operator.

The indicia of operate/operation available in case law provides that the person in control is the operator. We must conclude that Swanberg Trucking was the operator.

However, the fatal flaw in Mr. Seymour's proposition is not in finding Swanberg Trucking to be the operator but in assuming that only an operator, can operate.

The review of the many sections of the Regulations that utilize operate/operation in the flight context, coupled with the definitions of pilot-in-command/flight crew member, clearly show that the pilot-in-command/flight crew member "operates" during flight time.

The logbook entries by Mr. Seymour establish him as pilot-in-command for the flights in question, by operation of law, as previously discussed. That issue was corroborated by testimony of witnesses. As the analysis of the provisions shows the pilot-in-command has the responsibility for the operation of the flight, it must be found that Mr. Seymour did operate the flights that are the subject of counts 1, 2, 3 and 4. Therefore, the Minister did prove his case, on a balance of probabilities, and we find no defence of due diligence was proffered.

Mr. Seymour's argument regarding the Minister's prerogative to pursue various individuals (e.g., section 8.4 owner, operator, pilot-in-command) is resolved by our finding that, in the circumstances of the case, he operated the aircraft, as was alleged in the counts. Hence, the Member made no error in that regard.

At this juncture we must address the anomaly of the Member's finding which dismissed count 4. We are perplexed by his determination. In his analysis the Member found:

Entries in the Journey Log prove that certain flights were undertaken by Mr. Seymour while the aircraft was not registered is already established.

We embarked upon a more lengthy analysis, finding that those flights "undertaken" were indeed "operated" as per the count.

Having found the flights to have been undertaken while the aircraft was not registered, he nonetheless dismissed count 4.

As he found that the evidence revealed that all elements of the offence were made out, it would be unreasonable to dismiss the count. Unfortunately, the Member chose not to give us any guidance on the issue by providing reasons for his decision.

As the Member's determination is not consistent with the evidence he accepted, we find it unreasonable and overturn it.

Count 5 of this file is related to the carriage on the aircraft of liability insurance. The count states:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated aviation document on the grounds that you have contravened the following provision(s):

5. Air Regulations Series VI, No. 10, Section 5(1) in that you operated aircraft C-FGCO, Piper PA-23-250 on or about the 20th of July 1995, at or near Fort Nelson, British Columbia, without having carried on board proof of aircraft liability insurance.

Subsection 5(1) of the Air Regulations Series VI, No. 10 states:

No owner or operator of a private aircraft shall operate that aircraft unless there is on board that aircraft proof that the liability insurance subscribed for in accordance with these Regulations is being carried.

The lengthy analysis pertaining to the 1st four counts need not be undertaken here.

In keeping with the generally accepted practice of reading legislation as a whole, we perused the whole of Air Regulations, Series VI, No 10.

Section 3, at Application, states:

3. These Regulations apply to every owner and every operator of a private aircraft that is

(a) registered in Canada, where that owner or operator is not required to subscribe... (Emphasis added)

As the Member found that the aircraft was not registered, the regulation has no application. Therefore, the Member erred in law in upholding the suspension pursuant to this count.

We find that count 5 must be dismissed and that no suspension is in order.

DETERMINATION

We find that the Member erred in law in dismissing count 4 when he accepted evidence which proved the allegation. He did not err as regards to counts 1, 2 and 3. We find he erred in law regarding count 5 as the provision alleged to have been contravened did not apply in the circumstance.

In the result, Mr. Seymour's licence is suspended for 2 days on each count 1, 2, 3 and 4, for a total of 8 (eight) days.

Reasons for Appeal Determination:

Allister Ogilvie
Dr. David S. Ahmed
Fred W.R. Clarke


[1] National Bank of Greece (Canada) v. Katsikonouris (1990), 74 D.L.R. (4th) 197 at 203 (S.C.C.).

[2] R. Sullivan, Driedger on the Construction of Statutes, 3d ed.(Toronto and Vancouver: Butterworths, 1994) at 204-206.

[3] R. v. 264544 Alberta Ltd. and FIX (1985) 40 Alta. L.R. (2d) 388.