Decisions

CAT File No. W-1254-33
MoT File No. SAP 6504-P360223-26954

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Donald Frederick Seymour, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s 7.7, 8.4(2), 8.7(1), 28
Air Regulations, C.R.C. 1978, c. 2, s 101(1), 808(1), 825(1)(a), (c), 826(1), 827

Failure to carry documents on board


Review Determination
Ken Clarke


Decision: September 24, 1996

I uphold the sanctions imposed by the Minister on all three counts and confirm the full $150.00 of the monetary penalty. This amount, payable to the Receiver General for Canada, must be received by the Civil Aviation Tribunal within fifteen days of 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. 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 do not find any error of law or fact that would cause us to overturn the Member's finding. Accordingly we uphold the Member's determination thereby confirming the sanction of $50.00 penalty on each of the three counts for a total of $150.00. This amount is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days of the 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 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 flown without a pilot licence, radio operations and radio apparatus licence, the Member upheld the sanction by the Minister on all three counts and confirmed the $150.00 monetary penalty ($50.00 each count).

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.

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.

At the Appeal Hearing the Appellant and the Respondent produced written submissions and engaged in oral argument.

NEW EVIDENCE

Mr. Seymour wished to adduce further documentation in aid of his argument. Upon oral questioning it became apparent that such documentation was previously available to the Appellant and could have been presented at the Review Hearing. The Aeronautics Act provides at subsection 8.1(3) that "an appeal to the Tribunal shall be on the merits based on the record of the proceedings of the member of the Tribunal from whose determination the appeal is taken but the Tribunal shall allow oral argument and, if it deems it necessary for the purposes of the appeal, shall hear evidence not previously available." As the panel ruled that the evidence was previously available, it was not accepted at the appeal.

ARGUMENT

The Appellant argued that the Review Hearing Member, Mr. Ken Clarke:

1. erred in law:

  • In his oral presentation and written submission he alleged that legal error was evidenced in several areas each of which is noted below:

(a) that there was not full disclosure,

  • Mr. Seymour not having been provided:

(1) the reverse side of a document – M-3 – entitled Aircraft Document and Safety Equipment Checklist,

(2) Application for Registration of Aircraft, in blank;

(b) that the Member grossly deviated from his duty to act fairly, in that he accepted evidence which was intentionally misleading, as regards when the checklist was accomplished, when further documentation was demanded, when Inspector Hessberger attempted to resolve the registration issue;

(c) the Member relied upon evidence which was at best hearsay and dubious, in regards to his finding that no defence was made regarding proof of liability insurance, pilot licence or radio licence.

2. The Member misstated the facts in his decision rendered or stated for fact, evidence which was not produced by the Minister at the Review Hearing, in that he stated the seller had notified the Minister of the sale.

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

(a) stated the seller had notified the Minister of the sale of the aircraft, which was not in evidence;

(b) accepted hearsay evidence as regards who flew the aircraft.

4. Committed further and other errors:

(a) disallowed certain questions asked on cross-examination (P. 88, P. 124 of the transcript) which should have been allowed.

All of which, submits Mr. Seymour, should cause the Appeal Panel to overturn the Member's findings on review.

The Minister's representative, Ms. Caminsky, 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 the elements of the offence, a defence was not proven on a balance of probabilities. Issues raised by Mr. Seymour in oral argument were also addressed.

Regarding disclosure, the Respondent pointed out the missing item was inconsequential in that it was the back-side of the ramp-checklist which was not originally provided and it contained only technical information. The side containing the pertinent information that was in issue had been provided. The Certificate of Registration form in issue was in blank, and only proffered to show the type of form.

She argues that the transcript does not reveal any intention to mislead. Rather the transcript shows that the questions asked and checklist used was corroborated by other witnesses, Cole and McConnell.

As to the argument that the Minister's witness had to be coached or prompted, she stated that the transcript showed a normal direct examination.

The Appellant's point regarding the prerogative of which individuals that may be pursued only served to illustrate the reality of the Minister's discretion.

Regarding the Appellant's assertion that the Member made a finding of fact that the original owner had notified the Minister of the sale, the Respondent pointed out that the Member was only summarizing what he took to be Mr. Seymour's argument.

The Respondent replied that the transcript does not support the assertions of the Appellant regarding the testimony of witnesses Cole and McConnell as being half truth and half hearsay.

As well the allegation of bias by the Member was addressed in her written and oral submission. There was no evidence or indication that the Member had any pecuniary interest, or other interests that would be affected by the outcome of the hearing. The record revealed no indication that Mr. Seymour was treated unfairly or that the Member demonstrated bias toward Transport Canada.

All of which lead her to ask the panel to uphold the Member's determination.

THE LAW – MONETARY PENALTY

The Member upheld the monetary penalty of $50.00 for a breach of paragraph 825(a) of the Air Regulations and $50.00 each for the 2 types of breach of paragraph 825(c) of the same regulations.

The following provisions apply to this consideration:

Subsection 825(1) of the Air Regulations:

...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;

(b) the certificate of registration and, for other than an ultra-light aeroplane, the certificate of airworthiness or flight permit relating to the aircraft;

(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

(d) for other than an ultra-light aeroplane, a journey log relating to the aircraft.

Subsection 826(1) of the Air Regulations:

Every owner of an aircraft, other than an ultra-light aeroplane, registered under these Regulations shall maintain for that aircraft an aircraft journey log and an aircraft technical log.

Section 827 of the Air Regulations:

Every entry in a log maintained pursuant to section 826 shall be made accurately and in ink by a competent person and signed by that person as soon as possible after the events they record.

Subsection 101(1) of the Air Regulations:

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

Section 28 of the Aeronautics Act:

28. In any action or proceeding under this Act, an entry in any record required under this Act to be kept is, in the absence of evidence to the contrary, proof of the matters stated therein as against the person who made the entry or was required to keep the record or, where the record was kept in respect of an aeronautical product, aerodrome or other aviation facility, against the owner or operator of the product, aerodrome or facility.

DISCUSSION

We will deal at the outset with items of error alleged by Mr. Seymour that need not be addressed in the context of the particular allegation in the counts against him. Other alleged errors specific to counts follow:

(1) The Civil Aviation Tribunal Member erred at law:

There was not a full disclosure by the Minister prior to the Review Hearing. The documents in issue were the reverse side of the aircraft document and safety checklist and an Application for Registration in blank. The Member noted that the reverse section was not given to Mr. Seymour, stating he would take that into his consideration. A review shows that it did not form part of his reasoning.

Regarding the blank Registration, the Member stated "whatever pages are not there I will not allow to be discussed. Because it's only right that both parties have the information" (Transcript page 66). The Member disallowed the original uncompleted copy of the certificate of registration in his discussion of evidence at page 5 of the Review Determination.

Consequently, we find no error on this point.

(2) The Member misstated facts in his decision, or stated for fact evidence which was not produced by the Minister. Mr. Seymour proffers the Member's words at page 6 of the Reasons for Review Determination regarding the seller having notified the Minister of the sale. However, upon review we note that the Member was summarizing what he took to be Mr. Seymour's position on the issue, rather than stating a finding of fact. Therefore, we find no error in that regard.

(3) The Member was biased: Mr. Seymour raises as illustrations of bias, what are in reality merely findings of the Member which were not in his favour. Should such adverse findings constitute bias, one party to a proceeding would almost always be able to so claim.

Black's Law Dictionary[1] defines bias as: "Inclination; bent; prepossession; a pre-conceived opinion; a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction...."

At chapter 39 of Practice and Procedure Before Administrative Tribunals[2], bias is discussed:

The subject of bias and conflict of interest embodies the problem of when a reasonably well informed person, could come to the conclusion, that because of the past or present conduct of a member of an administrative agency, or that member's relationships, that such member could be biased.

A review of the record does not reveal that any of the indices of bias were present. There is no allegation of past or present conduct of the Member that indicates bias. Hence, we do not find error on behalf of the Member due to bias.

(4) Further and other errors:

(a) He disallowed certain questions to be asked on cross-examination of some of the Minister's witnesses:

      - the Member disallowed a question which was posed upon the witness' expertise. We found no error as the witness was not accepted as an expert.

(b) A question was being asked of an RCMP officer regarding whether an aircraft was being legally loaded, or not. The transcript shows that the officer declared that he was not well versed in aviation. The Member ruled that it need not be answered on the basis of an objection based on speculation. We find that this ruling was within the Member's latitude to make, and thus was not an error.

The Member in his Reasons for Review Determination found that the Minister had proven his case regarding Mr. Seymour's pilot licence, his radio operator's licence and the radio apparatus licence not being on board. He found that no defence was made regarding these items.

In that regard, regulatory offences in the Aeronautics Act are strict liability offences. Once Transport Canada has proved the constituent elements of such an offence on a balance of probabilities, the onus shifts to the alleged offender to prove on a balance of probabilities that he exercised all due diligence to avoid commission of the offence. See R. v. Sault Ste. Marie[3] and section 8.5 of the Aeronautics Act.

Regarding the alleged breach, the constituent elements of the offence would include:

Mr. Seymour flying the aircraft as pilot in command
(a) on the specified dates;
(b) when the licence or permit of the crew member; and
(c) the licence for radio apparatus of the aircraft and the certificate of proficiency of the operator of the apparatus, were not on board the aircraft.

A review of the transcript reveals Mr. Seymour identified himself to Inspector Hessberger, as the pilot and that the required documentation was not provided upon request. Inspector Cole and Corporal McConnell each corroborated portions of the testimony. Exhibit M-2, Appendix D is a photocopy of the journey log book. For an entry dated July 20, in column number 3 entitled "crew" is found printed "Seymour" and in column 14 entitled "Pilot or AME..." is found a signature "Seymour" with a licence number.

As noted above "crew member" means a person assigned to duty in an aircraft during flight time. Section 826 of the Air Regulations provides for the requirement for a journey log book to be kept and section 827 provides that "every entry in a log maintained pursuant to section 826 shall be made accurately and in ink by a competent person and signed by that person as soon as possible after the events."

As section 28 of the Aeronautics Act states that "in any record required under this Act to be kept (i.e., the journey log) is ... proof of the matters stated therein as against the person who made the entry" (Seymour). Entries in log are further proof of the flight recorded therein.

Therefore, all the elements of the offence had been made out.

Mr. Seymour rebuts what is found in the record of the initial proceedings with extensive illustrations, some of which follow:

"Erred at law", – At (d) of Mr. Seymour's written submission, he asserts that the member accepted evidence that was intentionally misleading; he takes issue with when Inspector Hessberger purportedly filled out his ramp checklist; he says the witness needed to be coached to answer questions; he says the Minister provided no evidence that anyone operated the aircraft.

At (e) – regarding the Member's finding that no defence was made regarding the documents, Mr. Seymour says the only thing to be said is the Minister's evidence was at best hearsay and dubious.

At (f) – he states that the Minister's other two witnesses must be viewed with scepticism as the transcript reveals some half truths and definitely some hearsay. As well he declares the RCMP officer to be a "professional story teller in the judicial system."

We thoroughly reviewed Mr. Seymour's reasons, in regards to the above noted allegations, but have not undertaken to address each and every one as they are both extensive and overlapping. Mr. Seymour's reasons are in reality only arguments or assertions of his perspective of the credibility of witnesses, but do not constitute any proof to rebut the corroborated testimony of witnesses on the record and the effect of the operation of law on his log entries. The Member was the person in the best position to judge the credibility of the witness. Regarding hearsay, the relaxed evidentiary rules of the Tribunal permit it to be admitted.

A review of the record reveals that he was correct in stating that the Minister had proven his case regarding the pilot licence and radio licences and that no defence was made in that regard.

DETERMINATION

We do not find any error of law or fact that would cause us to overturn the Member's finding. Accordingly we uphold the Member's determination thereby confirming the sanction of $50.00 penalty on each of the three counts for a total of $150.00.

Reasons for Appeal Determination:

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


[1] H.C. Black, Black's Law Dictionary, 6th ed. (St. Paul, Minn: West Publishing Co., 1990) at 162.

[2] R.W. Macaulay & J.L.H. Sprague, Practice and Procedure Before Administrative Tribunals, vol. 4 (Scarborough: Carswell, 1995) at 39-1.

[3] R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299.