Decisions

CAT File No. W-1586-41
MoT File No. SAP-6504-C6805-30692

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Northern Airlink Limited, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, s. 7.7, 26
Canadian Aviation Regulations, SOR/96-433, s. 571.10, 602.07(c), 605.94(1), 605.85(1), 605.93(5)

Maintenance Release, Journey Log Entries, Alteration of log book entries, Takeoff, Weight


Review Determination
Allister W. Ogilvie


Decision: November 19, 1998

Counts 1 to 4 are dismissed. The Minister has established all elements of counts 5 and 6; therefore, counts 5 and 6 are upheld. The penalty of $250 for each count is confirmed. The total amount of $500.00, payable to the Receiver General for Canada, must be received by the Civil Aviation Tribunal within fifteen days of service of this determination.

A Review Hearing on the above matter was held September 1 and 2, 1998 at 10:00 hours at the Eskimo Inn, in Inuvik, Northwest Territories.

BACKGROUND

On July 16, 1997, a Cessna 206 aircraft was observed attempting to take off from Shell Lake, near Inuvik, N.W.T. It was reported that the aircraft made several attempts to take off but was unsuccessful each time. Between two of the attempts, the aircraft returned to a dock and someone from the aircraft was reported to have been off loading from the aircraft. It then made a further unsuccessful attempt to take off.

The incident was anonymously reported to the Inuvik Flight Service Station. The FSS report resulted in a subsequent investigation by Transport Canada which was aided in its investigation efforts by Corporal Gillan of the Inuvik detachment of the RCMP.

The fruits of the investigation prompted allegations of offences against Northern Airlink Ltd. and Mr. Carl O. Falsnes.

A Notice of Assessment of Monetary Penalty dated January 13, 1998 was issued to Northern Airlink Limited (hereafter N.A.L.) and a Notice of Assessment of Monetary Penalty dated March 6, 1998 was issued to Mr. Carl Olav Falsnes.

As the Minister did not receive payment in either file, an application was made to the Civil Aviation Tribunal for a hearing in both matters.

The Notice of Assessment of Monetary Penalty stated in part:

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 #1: Canadian Aviation Regulations Section 602.07(c)

Northern Airlink Ltd. did on or about the 16th day of July 1997, at or near Inuvik, N.W.T. operate an aircraft, to wit a Cessna U206 with Canadian registration C-FAHH, not in accordance with the operating limitations indicated by markings or placards, by attempting to take off while the weight of the aircraft exceeded the maximum gross takeoff weight of 3600 pounds.

Count #2: Canadian Aviation Regulations Section 605.94(1)

Northern Airlink Ltd. did between the 29th day of October 1996, and the 16th of July 1997, at or near Inuvik, N.W.T., being the operator required to make entries in the journey log of the aircraft with Canadian registration C-FAHH, fail to make entries in the said journey log concerning the air time of each flight or series of flights, daily, on completion of each flight or series of flights.

Count #3: Canadian Aviation Regulations Section 605.94(1)

Carl Olav Falsnes did on the 18th day of June 1997 at or near Inuvik, N.W.T. being the person required to make entries in the journey log of the aircraft with Canadian registration C-FAHH, fail to make entries in the said journey log concerning the details of changes to the aircraft's empty weight and empty center of gravity after removal of the wheels and installation of floats as soon as practicable after the change was completed.

Count #4: Canadian Aviation Regulations Section 605.94(1)

Northern Airlink Ltd. did between the 18th day of June 1997, and the 26th day of June 1997, at or near Inuvik, N.W.T., being the operator required to make entries in the journey log of the aircraft with Canadian registration C-FAHH, fail to make entries in the said journal log concerning repairs made to the tail bushings of the aircraft as soon as practicable after the repair was completed.

Count #5: Canadian Aviation Regulations Section 605.93(5)

Northern Airlink Ltd. did between the 16th day of July 1997, and the 31st day of July 1997, at or near Inuvik, N.W.T., in altering the entry in the journey log of the aircraft with Canadian registration C-FAHH, fail to insert the date of and the reason for the alteration, and failed to insert the name and signature of the person making the alteration, and made the alteration in a manner which rendered the underlying information illegible.

Count #6: Canadian Aviation Regulations Section 605.85(1)

Northern Airlink Ltd. did between the 18th day of June 1997, and the 26th day of June 1997, at or near Inuvik, N.W.T., permit the take off of the aircraft with Canadian registration C-FAHH, when maintenance to the aircraft, to wit repairs to the tail bushings, had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations.

As the allegations against the company and Mr. Falsnes stemmed from the same incident and involved substantially similar offences, the hearing for both was held simultaneously at Inuvik on September 1 and 2, 1998. Evidence and argument were given on both matters. On certain issues, the points overlap. However, the reasons for determinations have been drafted separately but will refer to the other, when necessary.

PRELIMINARY MOTION

Mr. R.J. McFarlane, Superintendent Aviation Enforcement, presented the case on behalf of the Minister. Mr. Carl O. Falsnes represented N.A.L. At the start of the hearing Mr. McFarlane made a motion to amend the Notice of Assessment of Monetary Penalty.

The amendment regarding Northern Airlink Ltd. (CAT File No. W-1586-41) count 2 consisted of changing the inception date of the allegation from "the 29th day of October 1996" to "the 13th day of January 1997". The remainder of the count would remain the same.

The result of the amendment would be to bring the allegation into conformity with the limitation period stipulated in section 26 of the Aeronautics Act (the Act).

Mr. Falsnes agreed with the motion.

RULING

The motion was granted and the count amended as above.

EVIDENCE

Mr. Falsnes chose not to give evidence on N.A.L.'s behalf.

Documentary evidence accepted reveals that N.A.L. had been issued a domestic licence, by the Canadian Transportation Agency which entitles it to operate domestic service, small aircraft, between certain points in Canada provided that, in respect of such services, it holds a Canadian aviation document issued by the Minister of Transport.

N.A.L. does hold a Canadian aviation document, in the form of an air operator certificate, No. 7934, issued by the Minister of Transport, dated 1996.10.10. Among other things that document authorizes N.A.L. to operate Cessna 206 aircraft.

The Minister provided a copy of a certificate of registration showing a Cessna U206A aircraft, C-FAHH, serial number U206-0440 commercially registered to N.A.L. of Inuvik, N.W.T.

Evidence brought forth in the form of a copy of a lease agreement, between C and C Enterprises and N.A.L. shows N.A.L. to be the Lessee of C-FAHH and by certain covenants of the lease, N.A.L. is to be responsible for custody and control of the aircraft as well as being responsible for its airworthiness and maintenance.

When Corporal Gillan first attended Shell Lake no one was present. He later ascertained that Mr. C. Falsnes and Mr. D. Musslewhite were both on board the aircraft and interviewed them. He asked to see pertinent aircraft documents and personnel licences. The officer asked for and was given statements by both pilots on July 16, after having warned each that they were under investigation, were not obliged to give information and could seek counsel if they so desired. Both pilots provided voluntary signed statements as well as supplementary statements at a later date.

Weight

Evidence regarding the weight of the aircraft during its aborted take-off attempts on July 16, 1997 comes from several sources.

In his statement to Corporal Gillan, Mr. Falsnes describes the circumstances of the flight. He was to fly to Rendezvous Lake, approximately one and a half hours from Inuvik to pick up two passengers. On the way to Rendezvous Lake, he was going to train another pilot, Mr. Musslewhite, and freight some gasoline into the camp. In his statement, the following figures regarding weight were adduced:

  • Aviation fuel in the aircraft about 30 gallons (US) both sides for a total of 60 US gallons
360 lbs
  • about 400 litres automotive gasoline
636 lbs
  • weight of two fuel drums @ approximately 30 each
60 lbs
  • Mr. Falsnes, about
180 lbs
  • Mr. Musslewhite, about
170 lbs
  • extra gear at the most
50 lbs
   
Total 1 456 lbs

Mr. Musslewhite, in a statement given to Corporal Gillan, stated that between attempted take-offs a four-gallon container of gasoline had been removed from the aircraft before a subsequent attempt. He established the weight of that container of gasoline to be at 28 lbs. During cross-examination he was unable to remember if the passenger seats were carried or not.

During Corporal Gillan's testimony he had stated that he had observed two drums, some personal gear and a seat in the aircraft when he first investigated. Upon cross-examination he could only recall there being a single seat.

Mr. Pollock, the Transport Canada Investigator for these files, reviewed Transport Canada's file for aircraft C-FAHH, and produced several exhibits for equipment lists and weight and balances for the aircraft. He testified that Exhibit M-33 was the most current, superseding the others. Exhibit M-33 provides that this aircraft has an empty weight of 2179.64 lbs and a useful load of 1420.36 lbs (2179.64 + 1420.36 = 3600 lbs).

Journey Logs—Air Time

During the course of the investigation the aircraft's journey log was reviewed on three occasions. Photocopied excerpts become Exhibits M-1, M-13 and M-18.

Exhibit M-1 obtained on July 16, 1997 had as its last entry a flight of October 29, 1996. Exhibit M-13 obtained on July 31, 1997 contained approximately 90 additional flights dated from December 11, 1996 ending with a flight of July 23, 1997. No pilot signatures appear in column 14 of that exhibit. Exhibit M-18 contains four more flights. In addition Mr. Falsnes' signature and licence number appear in the signature column for all flights going back to the December 11, 1996 entry.

Maintenance

Exhibit M-1 has a maintenance entry of September 12, 1996 detailing a 50-hour inspection, signed by Olav Falsnes. In Exhibit M-13 that entry is altered to read 200-hour inspection. The 50-hour is no longer readable. Some additional work is also added, in a different handwriting. No signature, explanation, nor date of alteration is provided. In Mr. C. Falsnes' second statement to police, he said the entry was to correct an error in the cycle of inspection.

Exhibit M-13 contains a maintenance entry dated June 18, 1997 noting the removal of wheels and skis and installation of the floats. No entry regarding changes to the aircraft empty weight or empty centre of gravity accompanies the maintenance entry. The same entry details the removal of tail controls, replacement of all bushings, trim chains, bolts and nuts. The entry is signed by Olav Falsnes, M109231, June 18, 1997.

The initial flight after the maintenance of June 18 is entered on June 26, with the crew of Falsnes and another (name unreadable), with an air time of 1.5 hours and in the remarks column — Training.

Mr. Douglas Parker is a Transport Canada inspector for maintenance, based in Whitehorse. He had occasion to view the technical maintenance record of AHH in August of 1997 with Mr. Olav Falsnes during an inspection of N.A.L. and gave evidence of that inspection.

When questioned about the June 18, 1997 entry in the journey log, he agreed that it appeared that two items were accomplished, the change over from wheels to floats and work on the tail of the aircraft. Regarding whether the work on the tail required a test flight, Mr. Parker stated that critical work required a test flight, but he was unable to state whether or not the work was critical. He also granted that one can transcribe a journey log entry into the technical log if accompanied by a note stating so.

THE LAW

The Minister has alleged that N.A.L. violated the following provisions:

Section 602.07 of the CARs, Aircraft Operating Limitations:

602.07 No person shall operate an aircraft unless it is operated in accordance with the operating limitations

(...)

(c) indicated by markings or placards required pursuant to section 605.05;

Section 605.85 of the CARs, Maintenance Release and Elementary Work:

605.85 (1) Subject to subsections (2) and (3), no person shall conduct a take-off in an aircraft, or permit a take-off to be conducted in an aircraft that is in the legal custody and control of the person, where that aircraft has undergone maintenance, unless the maintenance has been certified by the signing of a maintenance release pursuant to section 571.10.

Subsection 605.93(5) of the CARs, Technical Records—General:

(5) Subject to subsection (6), where a person alters an entry on a technical record for the purpose of correcting the entry, the person shall do so by striking out the incorrect entry in such a manner that the underlying information remains legible, and inserting the correct entry together with

(a) the date of the alteration;

(b) the reason for the alteration, if it is necessary to clarify why the alteration was made; and

(c) the person's name and signature or employee identifier or, where the record is kept as electronic data, the person's user code or equivalent security designation.

Section 605.94(1) of the CARs, Journey Log Requirements:

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

Other pertinent legal references in this instance include:

Subsection 101.01(1) of the CARs:

"operator", in respect of an aircraft, means the person that has possession of the aircraft as owner, lessee or otherwise;

"owner", in respect of an aircraft, means the person who has legal custody and control of the aircraft;

"air operator" means the holder of an air operator certificate;

"air operator certificate" means a certificate issued under Part VII that authorizes the holder of the certificate to operate a commercial air service;

Section 8.4 of the 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 unless, at the time of the offence, the aircraft was in the possession of a person other than the operator without the operator's consent and, where found to have committed the offence, the operator is liable to the penalty provided as punishment therefor.

(3) The pilot-in-command 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 unless the offence was committed without the consent of the pilot-in-command and, where found to have committed the offence, the pilot-in-command is liable to the penalty provided as punishment therefor.

(...)

Subsection 3(1) of the Act:

"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

ARGUMENT—The Minister

Mr. McFarlane proposed that the evidence presented during the hearing related to the allegations against both Mr. Falsnes and N.A.L. He argued the evidence of the journey log showed that Mr. Falsnes was the pilot-in-command of the attempted flight on July 16, 1997. Other documentary evidence showed that the aircraft was registered to N.A.L. and it held an air operator certificate which permitted operation of a 206 aircraft. This he contends established N.A.L. as the operator of the aircraft.

Count 1: Mr. McFarlane contended that the documentation showed that N.A.L. had been established as the operator. He argued that Mr. Falsnes was established as the pilot-in-command on July 16. He maintained that the empty weight of 2179.64 lbs provided in the equipment list coupled with the weights provided by Mr. Falsnes in his statement (totalling 1456 lbs) go to prove that the aircraft exceeded the gross weight of 3600 lbs (2179.64 + 1456 = 3635.64). He reviewed Corporal Gillan's testimony regarding there being at least one passenger seat. If the gasoline container weighing 28 lbs were added, the total would be about 3663, some 63 lbs overweight.

Count 2: The Minister contends that N.A.L. was established as the operator, as per the argument in count 1. He argues his point by comparing two excerpts from the journey logs. Exhibit M-1 showed no entries at all after October of 1996, whereas Exhibit M-13 contains numerous flights, ending on July 23, 1997 with the air time entered. Therefore he maintains the air time entries were not made daily on completion of the flight. Exhibit M-18 showed Mr. Falsnes to have been the pilot-in-command.

Count 3: The Minister stated that as Mr. Falsnes was the CEO (Chief Executive Officer) of N.A.L. he became responsible in that capacity through the operation of section 8.4 of the Act. He argued a review of both Exhibit M-1 and Exhibit M-13 journey log excerpts shows that neither contains any notation of a change to the empty weight or empty centre of gravity when the aircraft was changed over.

Count 4: The Minister contended that the comparison of journey log excerpt (M-1) and the technical log (M-15), showed that entries regarding the tail bushings were not then entered in the journey log, but that the work showed in the technical log.

Count 5: The Minister maintained that the comparison of the entry of September 12, 1996 in Exhibit M-1 with the same entry in Exhibit M-13 showed that the alteration was not in conformity with the regulation, as it rendered the former entry illegible and lacked prescribed particulars.

Count 6: Here he argued that the journey log Exhibit M-1 showed no maintenance release whereas Exhibit M-13 contained a release. However, that release had to have been entered after July 16. As the flight subsequent to the maintenance was on June 26, the maintenance release was not in effect on the day of the flight.

ARGUMENT—Mr. Falsnes

Mr. Falsnes stated that the charges against himself and against N.A.L. were basically the same and that the he objected to that, since, as a one-man company it was the same as being charged twice.

Count 1: Mr. Falsnes submitted that the aircraft was not in an overweight condition, but rather that the wind and temperature conditions of the day had prevented the take-off. He had presented calculations through Mr. Musslewhite which differed from those of Transport Canada.

He did not contest the empty weight nor the weights he had provided to Corporal Gillan but argued that the passenger seat weights of 26 and 22 lbs (M-33) = 48 lbs should have been subtracted from the empty weight as they were not on board (i.e., 2179 - 48 = 2131 lbs). Empty weight 2131 + load 1456 = 3587 lbs). He also maintained that the four extra gallons in the jerry can would have been calculated in the flight planned fuel so would already be in the calculation. Therefore, he maintained the offence was not proven.

Count 2: Mr. Falsnes explained that he had recorded all the appropriate log entries on a separate sheet of paper and merely transcribed them at a later date which was as soon as practicable.

Count 3: He argued that it was not his, but the engineer's responsibility to have made the entry. As well, since it was the same set of floats being reinstalled, it was a known quantity and not a change to the weight and balance.

Count 4: M. Falsnes did not add argument on this point as he asserted that it was covered by his argument in the other (Falsnes) file. However, count 3 of that file referred to an alleged breach of subsection 605.85(3) of the Canadian Aviation Regulations (CARs) where this count addresses subsection 605.94(1) of the CARs. In the result no argument was made on this count.

Count 5: He asserted that the alteration was merely a correction made by Olav Falsnes, to rectify an earlier error, and that it was not made to hide anything.

Count 6: Mr. Falsnes submitted that the testimony of Mr. D. Parker was to the effect that the maintenance release in the journey log was a valid release and that the transcription of that release into the aircraft technical log was also valid.

DISCUSSION

At the outset of his argument Mr. Falsnes said that, as he was a one-man company, charging both himself personally and N.A.L. for the same offence was the same as being charged twice himself.

In effect he raises an issue which may be described as double jeopardy. That is that an accused, having been convicted of one offence, should not, in respect of the same act, also be convicted of another offence.

Individuals incorporate companies for any number of reasons advantageous to themselves which may include tax advantage, limitation of liability or continuity of existence. A further consequence of incorporation is that the company becomes a "person" distinct from the individual incorporating the company[1].

This concept has been addressed in Civil Aviation Tribunal jurisprudence on numerous occasions. The Appeal Panel in Lindbergh[2] said: "For purposes of proceedings under the Act a 'corporation' is the same as a 'person' and both can commit offences under the Act." Therefore, I cannot agree with Mr. Falsnes' assertion that he is being charged twice because N.A.L. is established as a "person" distinct from Mr. Falsnes.

The Minister must prove, on a balance of probabilities, each element of an offence. The proof must come from the evidence presented, whether through witness testimony or documentary evidence such as exhibits or through other acceptable means.

In the case before me, statements given by Mr. Falsnes and Mr. Musselwhite to the RCMP were also presented in evidence. They are in the form of hearsay evidence. Hearsay evidence may be described as evidence not proceeding from the personal knowledge of the witness, but from the mere repetition of what he has heard others say.

The statements were voluntarily given by them to the police after they were warned of their right to silence and to the right of counsel. Such evidence is characterized as an admission against interest. Under the strict rules of evidence that characterization forms an exception to the hearsay rule and is therefore admissible.

Section 37 of the Act provides that the Tribunal is not bound by the legal and technical rules of evidence. As such statements are admissible under the technical rules of evidence, there is even less reason to object to them under the more relaxed rules of the Tribunal.

As well Mr. Musselwhite did give sworn testimony and was subject to cross-examination. Mr. Falsnes chose not to give testimony, and, in argument, did not challenge the veracity of the statements previously given to police. In the result, I have accepted as admissible the statements given by these gentlemen to the police.

A statement to police was also given by Mr. Olav Falsnes. That statement did not take the form of a warned statement. Mr. Olav Falsnes was not a suspected offender. That statement does not form an exception to the hearsay rule. Although under the Civil Aviation Tribunal procedure hearsay can be admitted, in this instance there is no way for me to assess its reliability and I do not see it as necessary. Therefore, I have not relied upon it in my conclusion.

Exhibit M-30 shows that N.A.L. is the lessee of the aircraft. As subsection 101.01(1) of the CARs establishes that an operator is a person who has possession of the aircraft as lessee, N.A.L. is an operator.

As well subsection 101.01(1) of the CARs provides that an air operator is the holder of an air operator certificate. Exhibit M-33 proves that N.A.L. holds an air operator certificate and is then an air operator.

Count 1—Operation of an Aircraft Not in Accordance with Operating Limitations

For an alleged infraction of paragraph 602.07(c) of the CARs the Minister must prove:

  • the identity of the person alleged to have violated the provision;
  • that the person operated an aircraft, not in accordance with the operating limitations indicated by markings or placards required pursuant to section 605.05;
  • that the operation occurred on the day in question.

The certificate of registration for this aircraft identifies it as U206A serial U206-0440. The type certificate for this model (M-29) requires that a placard must be displayed with required information. The operating limitation indicated by the required marking or placard is maximum weight of 3500 lbs for float planes.

The Minister has alleged that the aircraft weight was in excess of 3600 lbs.

The aircraft empty weight of 2179.64 was established by the equipment list Exhibit M-33. Mr. Falsnes contests the total weight, taking the view that it would have been under 3600 if two passenger seats had been subtracted and the extra aviation fuel in the cabin included in the flight planned fuel on board.

Corporal Gillan testified that there was a passenger seat in the aircraft. Mr. Musslewhite could not remember. Mr. Falsnes' statements did not address it, but the stated intention for the trip was to pick up two passengers. Although it is tempting to assume that, with that in mind, the seats must have been on board, Mr. Falsnes argued that the seats may already have been at the campsite having been dropped off on a previous trip.

However, that question may not be determinative of the issue.

The weights given in evidence are:

  • aviation fuel in aircraft
360 lbs  
  • 400 litres automotive gasoline
636 lbs  
  • weight of two fuel drums at 30 each
60 lbs  
  • Mr. Falsnes
180 lbs  
  • Mr. Musslewhite
170 lbs  
  • extra gear
50 lbs  
     
  1 456 lbs — all these weights are approximations
     
  • aircraft empty weight
2 179,64 lbs  
     
Total 3 635,64 lbs  

If as argued by Mr. Falsnes the weight of the two seats (48 lbs) should be subtracted, the weight would be (3635 - 48) = 3587 lbs.

However, the conclusion ignores the issue of the 28 pounds attributed to the extra jerry can of fuel. Even with the seats subtracted, with the addition of that fuel the weight becomes 3587 + 28 = 3616.

I accept Mr. Musslewhite's testimony that the container was on the aircraft for at least the first flight. I do not accept the argument that the weight of that fuel would have been included in the flight planned fuel figure, as that fuel, being in the cabin, was not available without a stop for re-fuelling.

Therefore, the total weight of the aircraft, even if the seats were not in the aircraft, seems to exceed the 3600 lbs alleged by the Minister. I use the word "seems" because of the quality of the proof offered.

The weight issue in this file raises some issues. As can be seen the margin over 3600 pounds is not great. The addition or deletion of one item such as a seat can tip the scale either way. As well the extra gear carried was characterized as 50 lbs "at the most." With that sort of qualifier there is latitude to find that it weighed less than 50 lbs, which may have put the weight under 3600 lbs. The evidence of the weights on board from Mr. Falsnes' statement to the RCMP reveals that each item or weight was prefaced by a qualifier of "about" "at the most" or "approximately."

In cross-examination, when asked if he had weighed the load, Corporal Gillan said he had taken Mr. Falsnes' word for it. Therefore, the actual weight is simply not known. It seems extraordinary that an investigating officer takes the word of an alleged offender rather than trying to obtain objective proof of the allegation. Any number of things might have been done to ascertain the actual weight of the aircraft; the most basic being unloading, listing and weighing the aircraft's contents and measuring the actual fuel on board. This would have had the additional benefit of resolving the passenger seat issue.

As well the wording of the allegation creates a problem. It alleges that the aircraft was operated, not in accordance with the operating limits indicated by markings or placards as the aircraft exceeded the maximum gross take-off weight of 3600 pounds.

Exhibit M-33, the equipment list for CF-AHH provides for float landing gear. The aircraft empty weight is shown as 2179.64 lbs and the useful load as 1420.36 lbs. The equipment list does not totalize these figures, but of course the total is 3600 lbs. The Minister uses that figure in the allegation and characterizes it as "the maximum gross takeoff weight." Exhibit M-29, the type certificate, provides that the operating limitation indicated by the required placard is 3500 lbs for a float plane.

The section alleged to have been breached makes direct reference to the operating limitation indicated by markings or placards. That must be the 3500 lbs specified by the type certificate. Why then does the Minister use a weight, other than the one specified?

As the actual weights are not known and the ones given in evidence are all approximations, the Minister has not proved, on a balance of probabilities, that the aircraft exceeded 3600 lbs. Count 1 is dismissed.

Count 2—Particulars Recorded in a Journey Log

Counts 2, 3, and 4 all allege violations of subsection 605.94(1) of the CARs. The schedule to that section provides that nine different items must be entered in the journey log and provides the person responsible for the entry and the appropriate time of entry.

For a violation of subsection 605.94(1) of the CARs the Minister must identify the person responsible for the entry and prove that the person did not make the entry, or that the entry was made but not in a timely manner.

Count 2 addresses item 3, air time. Column I requires the air time to be entered. Column II stipulates that the entry be made daily, on completion of each flight. Column III establishes that the person responsible for the entry is the pilot-in-command of the aircraft or a person designated by the air operator.

A comparison of the journey log excerpts shows that flights were flown between January 13, 1997 and July 16, 1997. However, no entries were made until after July 16. Journey log excerpt Exhibit M-18 establishes Mr. Falsnes as having been the pilot-in-command for the flights.

Count 3—Particulars Recorded in a Journey Log

Count 3 addresses item 2, which actually refers to two different particulars and identifies two different persons as having responsibility for entry. A distinction must be made in order to ascertain the person responsible for the particulars to be entered.

Column 1 requires that the aircraft's empty weight and empty centre of gravity and any change to the aircraft empty weight and empty centre of gravity be entered. Column II stipulates that the entry be made on commencing keeping a journey log and on bringing a new volume of an existing log into use and, when a change occurs, as soon as practicable after the change but, at the latest, before the next flight. Column III establishes the person responsible as the owner of the aircraft and, for any change, the person who made the change.

The wording of count 3 addresses failure to make entries concerning the details of changes to the aircraft's empty weight and empty centre of gravity. Therefore, the person responsible for the entry is the person who made the change.

Exhibit M-13 reveals that the aircraft had been changed from wheels to floats on June 18, 1997. None of the journey log excerpts show a change to aircraft empty weight and empty centre of gravity. Mr. Olav Falsnes changed the aircraft from wheels to floats, thus causing the changes to the weight and centre of gravity.

Count 4—Particulars Recorded in a Journey Log

Count 4 addresses item 9, particulars of maintenance. Column I requires particulars of any maintenance item to be entered. Column II provides that the entry be made as soon as practicable after the maintenance action ... but, at the latest, before the next flight. Column III stipulates that the person who performed the maintenance action is responsible for the entry.

The log excerpts show the tail repairs accomplished on June 18, 1997. The flight following the repairs occurred on June 26, 1997. However, the entry regarding the repairs was not entered in the log until after July 16. Subsection 605.94(1) provides that the entry should have been made before the next flight. The person identified as being responsible, was the person who performed the maintenance. The log entry shows this to be Mr. Olav Falsnes.

It can be seen that in each of these three counts, as worded, the person identified as being responsible is not the person alleged in the offence. Counts 2 and 4 allege N.A.L. as operator to be responsible and count 3 alleges Mr. C. Falsnes to be responsible. In argument at count 3, the Minister asserted that Mr. Falsnes was responsible through the operation of section 8.4 of the Act.

That section addresses what may be known as vicarious liability. That term is not defined by the Act or CARs, but Black's Law Dictionary[3] describes it as: "Indirect legal responsibility; for example, the liability of an employer for the acts of an employee".

Section 8.4 of the Act establishes the legal link between the person acting and the person ultimately responsible. The subsections of 8.4 provide reference to (1) the registered owner of an aircraft, (2) the operator of an aircraft, (3) the pilot-in-command of an aircraft, and (4) the operator of an aerodrome. These subsections allow proceedings to be taken against the particular entity (1)–(4) for an offence in relation to the aircraft, for which another person is subject to be proceeded against.

The Notice of Assessment of Monetary Penalty did not include any reference to reliance upon section 8.4 of the Act. Mr. McFarlane only raised it in argument and then only in reference to count 3.

Neither party offered any explanation nor any jurisprudence on the issue. Therefore, I reviewed some similar past cases for its application. In Lindbergh's Air Service[4] it was alleged that an air carrier operated a DHC-3 which landed at night at an unlighted aerodrome. That aircraft was flown by the sole shareholder director, chief pilot, who was also a pilot (employee) of the corporation. At review, the hearing officer did not make a finding of responsibility against the company. However on appeal, addressing the issue of vicarious liability, it was held that there was contravention, and the company's operating certificate was suspended for seven days. In that case the Minister's reliance upon section 8.4 of the Act (then 7.4) was clearly expressed by its inclusion in the Notice of Suspension.

John R.A. Clarkson v. Minister of Transport[5] was a case where it was alleged that, on numerous occasions no journey log entries were made with respect to flights of an aircraft owned by the company. The Notice of Suspension included a statement that procedures were by way of vicarious liability in accordance with subsection 8.4(1) of the Act. The operator had submitted that the pilot was neglectful in keeping the log book entries. The hearing officer found that the company had contravened subsection 826(1) of the Air Regulations and upheld a suspension of the air carrier's operating certificate.

Lionel Gartner v. Minister of Transport[6] was a case involving a small operation where vicarious liability became an issue. Mr. Gartner had been hired to supervise the installation of a part on a remote drill rig. It was transported to the rig by Mr. Gartner in a private aircraft. That aircraft was registered to a company, Mastco, of which Mr. Gartner was President. The Minister of Transport issued a Notice of Suspension of his private pilot licence wherein it was alleged that he operated a commercial air service when he did not possess a Minister's certificate allowing him to do so. The Notice did not refer to section 8.4 of the Act.

At review, counsel for Mr. Gartner presented a motion regarding insufficiency of evidence. He argued that the company, Mastco, should have been charged not Mr. Gartner. As well counsel made a motion for the proceeding to be struck as there was a failure to disclose the section violated and therefore no opportunity for a proper defence. The motions were not granted. The member found against Mr. Gartner. The decision was appealed.

On appeal, one ground was that the member erred in law in finding that the Minister had properly disclosed those sections of the Act upon which he relied. That issue was not determinative of the appeal, but was analysed at length. The appeal panel's conclusion is instructive in this case, as they addressed the problem of no notice of reliance upon section 8.4 in the Notice of Suspension.

The appeal panel concluded:

This appeal has been determined on grounds other than that concerning the adequacy of the Notice of Suspension or disclosure. In view of the foregoing analysis, however, the Appeal Panel found that the tenets of procedural fairness and natural justice would require the Minister to reveal expressly his reliance upon the vicarious liability section, whether by inclusion in the Notice of Suspension or clear expression in the disclosure package.

The very foundation of section 8.4 of the Act makes one person responsible for the act of another. Surely the person charged should have adequate notice that he is being held responsible for the acts of another so that he can present a complete and effective response.

In the foregoing discussions, the evidence addressed by the Minister in counts 2, 3 and 4 was sufficient to prove the requisite elements of the offence, except for the person responsible.

Regarding count 2, the person made responsible by subsection 605.94(1) of the CARs is the pilot-in-command or the person designated by an air operator. There was no evidence of anyone being designated by an air operator. The log excerpt, Exhibit M-18, establishes Mr. Falsnes as the pilot-in-command. The Minister alleges that N.A.L. as operator was required to make the entry. Through the operation of subsection 8.4(2) of the Act, the operator may have been proceeded against, but the Notice did not invoke that section nor was its applicability argued at the hearing. Therefore, the Minister did not prove that N.A.L. as operator, was responsible for the entry. Count 2 is dismissed.

As to count 3, the Notice alleges Mr. Carl O. Falsnes as being the person required to make entries, whereas subsection 605.94(1) of the CARs stipulates that it is the person who made the change. The evidence does not disclose that Mr. Carl O. Falsnes made the change. The Minister did assert that Mr. Falsnes was liable through the operation of section 8.4 of the Act as he was C.E.O. and owner/operator. Documentary evidence has established N.A.L. as the owner/operator. Section 8.4 of the Act can only be invoked pursuant to those entities listed in the subsections, and C.E.O. is not among them. In any case, pursuant to the finding in Gartner, I would find that the Minister must give notice of his reliance upon section 8.4 of the Act, either in the Notice or through adequate disclosure, and here he did not do so. The offence, therefore, has not been made out as Mr. Carl O. Falsnes was not established as the person responsible. Count 3 is dismissed.

As regards count 4, it alleges N.A.L. as operator to be responsible, whereas subsection 605.94(1) of the CARs provides that the person who performed the maintenance action is responsible. Here again section 8.4 of the Act may have allowed the operator to have been proceeded against, but no mention was made in the Notice nor was it argued. In the result, the Minister has failed to prove that N.A.L. as operator was responsible. Count 4 is dismissed.

Count 5—Alteration of a Technical Record for the Purpose of Correcting an Entry

Subsection 605.93(5) of the CARs—the Minister must prove:

  • that a person altered an entry on a technical record for the purpose of correction;
  • the person did so in such a manner that the underlying information became illegible;
  • the person did not insert the particulars required by paragraphs (a)-(c)

Subsection (5) is made subject to subsection (6). Subsection (6) deals with technical records kept as electronic data and is not pertinent in this instance.

Mr. C. Falsnes' statement to Corporal Gillan acknowledges that the change from 50 hours to 200 hours was to correct an error. A comparison of Exhibit M-1 to Exhibit M-13 shows that the original 50 hours inscription became illegible when the "200" was written over it. The corrected entry does not contain the details required by paragraphs (a)-(c). The subsection does not ascribe responsibility for the alteration to any particular person, but subsection 605.92(1) of the CARs establishes that the owner of the aircraft is to keep the technical records, including the journey log. N.A.L. has been established as owner of the aircraft. The Minister has established all elements of count 5.

Count 6—Conducting a Take-off in an Aircraft, When Maintenance to That Aircraft Had Not Been Certified by the Signing of a Maintenance Release

Subsection 605.85(1) of the CARs—The Minister must prove:

  • the identity of the person conducting or permitting a take-off in an aircraft;
  • that the person has legal custody and control of that aircraft;
  • that a take-off was performed after the aircraft had undergone maintenance when the maintenance was not certified by a maintenance release pursuant to section 571.10.

The subsection is made subject to subsections (2) and (3). They address conditional maintenance release and test flight, which are not applicable here.

The certificate of registration shows N.A.L. to be the owner of aircraft C-FAHH. Subsection 101.01(1) of the CARs provides that the owner, in respect of an aircraft, means the person who has legal custody and control which in this case is N.A.L.

The log excerpts show that maintenance was performed on the aircraft on June 18 and a flight made on June 26 but that the maintenance release did not appear until after July 16.

Mr. Falsnes argued that Mr. Parker's testimony was that the maintenance release was effective. However, Mr. Parker was giving testimony in regard to the release shown in Exhibit M-13, without the knowledge that the release had not been entered in the log until after the subsequent flight.

The Minister has shown that N.A.L. had custody and control, and that a flight (take-off) occurred when maintenance had not yet been certified. As N.A.L. had custody and control, it follows that N.A.L. had permitted the take-off. The Minister has established all elements of count 6.

CONCLUSION

Dismiss counts 1 to 4.

Uphold count 5 $250,00 The Minister has established all elements of count 5.
Uphold count 6 $250,00 The Minister has established all elements of count 6.
     
Total $500.00  

DETERMINATION

Counts 1 to 4 are dismissed. The Minister has established all elements of counts 5 and 6; therefore, counts 5 and 6 are upheld. The penalty of $250 for each count is confirmed. The total amount of $500.00, payable to the Receiver General for Canada, must be received by the Civil Aviation Tribunal within fifteen days of service of this determination.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1] Person—Interpretation Act: "person", or any word or expression descriptive of a person, includes a corporation;

[2] Minister of Transport v. Lindbergh's Air Service (CAT File No. O-0025-10)

[3] Black's Law Dictionary — 5th Edition

[4] Lindbergh's Air Service, CAT File No. O-0025-10

[5] John R.A. Clarkson, CAT File No. C-0347-10

[6] Lionel Gartner v. Minister of Transport, CAT File No. W-1278-02