CAT File No. W-1380-41
MoT File No. SAP-6504-C6556-28693
CIVIL AVIATION TRIBUNAL
Minister of Transport, Applicant
- and -
West Point School of Aviation Inc., Respondent
Aeronautics Act, S.C., c.A-2, s.7.7, 8(b)
Air Regulations, C.R.C. 1978, c.2, s.210(1)(a)
Certificate of Airworthiness
William C. Pearson, Q.C.
Decision: April 18, 1997
On the basis of the evidence, I uphold the Minister's allegations. I reduce each of 2 counts from $1,000.00 to $500.00 for a total of $1,000.00. This amount is to be paid to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days following service of this determination.
A Review Hearing on the above two matters was held April 8, 1997 at 10:00 hours at the Federal Court of Canada, in Calgary, Alberta.
The parties agreed that the Minister would present all the evidence for both files, subject to cross-examination of each witness by the Respondent and reexamination by the Minister.
The Respondent then advised that it was satisfied with disclosure. The Minister's representative then moved a series of amendments of which notification had been made. These were unopposed and allowed. In addition, amendments were moved to strike paragraph "7.3(1)(a)" and replace it with subsection "7.6(2)" in the allegations specified in CAT File No. W-1380-41. These amendments were allowed.
Mr. John McIntee, the Case Presenter for West Point School of Aviation Inc. (West Point), advised the Tribunal that he was not contesting the contraventions alleged by the Minister, but rather wished to explain how these matters happened.
With regard to the allegations in CAT File No. W-1380-41, the modifications were, in the opinion of expert witness David Damont Austen, an aeronautics engineer, of a major classification. Therefore, the modifications were required to be approved as they affected the certificate of airworthiness, and under its terms revoked the said certificate. Mr. McIntee produced James Gilbert Thomas, AMO, who had declared the installations to be a minor modification and hence did not affect the certificate of airworthiness. In the final analysis the Minister, although the AMO may have the authority to make the decision, has the final decision. Accordingly I must, on the basis of the evidence, find these contraventions proven.
With regard to the contraventions alleged in CAT File No. W-1381-41, there are fourteen counts alleging that John Robert McIntee operated as a commercial pilot, when he held only a private pilot licence. At the time he made the flights, he was probably entitled to do so, but when he demanded payment by invoice No. AW6 (Exhibit M-7) of West Point, he came within the definition of "commercial" within the Act. While this invoice was never paid nor entered on the books of West Point, it changed the requirement of his licence from private pilot to commercial pilot, and hence the fourteen counts alleged by the Minister are confirmed.
There remains only the question of sanction to be considered. In reviewing the evidence I am persuaded that the Respondent did not at any time knowingly contravene the regulations, but through obtaining bad advice that the modifications were minor and an invoice issued in anger, the Respondent finds itself owing $9,000.00 in penalties.
The Aeronautics Act provides in paragraph 8(b) that the member of the Tribunal may determine the amount of the penalty. Accordingly, in CAT File No. W-1380-41, I reduce each of 2 counts from $1,000.00 to $500.00 for a total of $1,000.00. In CAT File No. W-1381-41, I reduce each of 14 counts from $500.00 to $250.00 for a total of $3,500.00, leaving a total of $4,500.00 to be paid to the Tribunal by the Respondent.
Civil Aviation Tribunal
Allister W. Ogilvie, Faye H. Smith, Gordon R. Mitchell
Decision: October 7, 1997
The Tribunal has decided to dismiss the Appeal and uphold the Review Determination. The total penalty of $1,000.00 is to be paid to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days following service of this determination.
An Appeal Hearing on the above matter was held September 26, 1997 at 10:00 hours at the Federal Court of Canada in Calgary, Alberta.
In accordance with the duly served Notice of Appeal Hearing, a hearing was convened to hear the Appeal filed on behalf of West Point School of Aviation Inc. of the Review Determination rendered by William C. Pearson, Q.C. dated April 18, 1997.
The Respondent was represented by Ms. Edith Holly and Mr. Noel Ribout. No one appeared on behalf of the Appellant, West Point School of Aviation Inc. After waiting until 10:20 a.m. and verifying that no message had been left with the Tribunal Office in Ottawa, it was decided to proceed.
The Appeal Hearing resumed. In view of the Appellant's failure to appear, there having been no case for the Respondent to meet, the panel stated that it would make its decision on that basis.
Accordingly, the Tribunal has decided to dismiss the Appeal and uphold the Review Determination.
Reasons for Appeal Determination by:
Faye Smith, Chairperson
Allister Ogilvie, Vice-Chairperson
Gordon R. Mitchell, Member
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