CAT File No. W-1597-33
MoT File No. SAP-6504-P-345415-30011



Minister of Transport, Applicant

- and -

Carl Olav Falsnes, Respondent

Aeronautics Act, S.C., c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.07, 605.85(3), 605.94(1)

Maximum Take-off Weight, Journey Log Entries, Air Time, Test Flight

Review Determination
Allister W. Ogilvie

Decision: November 19, 1998

Counts 1 and 3 are dismissed. The Minister has established all elements of count 2; therefore, count 2 is upheld. The penalty of $250 for count 2 is confirmed. That amount, 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 1998 at 10:00 hours at the Eskimo Inn, in Inuvik, Northwest Territories.


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, 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 O. 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 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: Section 602.07

Carl Olav Falsnes 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 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: Section 605.94(1)

Carl Olav Falsnes did between the 29th day of October 1996 and the 16th day of July 1997, at or near Inuvik, N.W.T. being the person required to make entries in the journey log of the Cessna aircraft 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: Section 605.85(3)

Carl Olav Falsnes did on or about the 26th day of June 1997, at or near Inuvik, N.W.T. being the person required to make entries in the journey log of the Cessna aircraft Canadian registration C-FAHH, fail to make entries in the said journey log concerning the test flight results for the aircraft after the aircraft had undergone maintenance to repair the tail bushings.

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.


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

The amendment for count #2 consisted of changing the inception date of the allegation from, "the 29th day of October 1996" to "the 6th day of March 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.


The motion was granted and the count amended as above.


Mr. Falsnes chose not to give evidence on his own 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.


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.


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 Minister has alleged that Mr. Falsnes violated the following provisions:

Section 602.07 of the Canadian Aviation Regulations (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;

Subsection 605.85(3) of the CARs, Maintenance Release and Elementary Work:

(3) Following a test flight conducted pursuant to subsection (2), the pilot-in-command shall enter the results of the test flight in the journey log and, where the entry indicates that the results of the test flight are satisfactory, that entry completes the maintenance release required by subsection (1).

Section 605.94 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;

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 argued that Mr. Falsnes was established as the pilot-in-command on July 16. He contended that the empty 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 (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 illustrates his point by comparing two excerpts from the journey logs. Exhibit M-1 showed no entries at all after October of 1996, where 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: Exhibit M-1 of the journey log showed no entry for June 18, 1997, therefore, no entry for a change over of June 18. Exhibit M-13 and the technical log Exhibit M-15 showed the change over accomplished on June 18, 1997. The flight subsequent to the work being done was on June 26. The journey log entry did not show test flight results. Thus he argues, that allegation is made out.

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: On this point, it was argued that there was no need to do a test flight, and that the engineer had said that it was not necessary.


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.

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 log entries of Exhibit M-18 identify Mr. Falsnes as the pilot-in-command of the aircraft for the flight of July 16, 1997. The Act establishes the pilot-in-command as the pilot having responsibility and authority for the operation and safety of the aircraft during flight time. Therefore, as pilot-in-command he has been established as operating the aircraft.

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 the 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 as given in evidence are:

  • aviation fuel in aircraft
360 lbs  
  • 400 litres automotive gasoline
636 lbs  
  • weight of two fuel drums at 30 eac
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  

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, that 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 the 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 words "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

The schedule to subsection 605.94(1) requires certain entries in the journey log.

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.

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.

A comparison of the journey log excerpts shows that flights were flown between March 6, 1997 and July 16, 1997, but that the air times were not entered until after July 16, 1997. Journey log excerpt Exhibit M-18 establishes Mr. Falsnes as having been the pilot-in-command for the flights.

As the air times were not entered daily on completion of each flight, by Mr. Falsnes, the Minister has proven each element of the offence.

Count 3—Entering Results of a Test Flight in the Journey Log after the Aircraft Had Undergone Maintenance

The Minister must prove that there was a test flight pursuant to subsection (2), that the flight took place on the day in question, the identity of the pilot-in-command, and that the pilot-in-command did not enter the results of the test flight in the journey log.

The allegation is that Mr. Falsnes on June 26 failed to make entries in the journey log concerning test flight results, after maintenance to repair the tail bushings.

The test flight must be conducted pursuant to subsection 605.85(2) of the CARs. It states:

(2) Where a maintenance release is conditional on the satisfactory completion of a test flight pursuant to subsection 571.10(4), the aircraft may be operated for the purpose of the test flight if no person is carried on board other than flight crew members and persons necessary for the purpose of making observations that are essential to the test flight.

That is the aircraft may be operated for a test flight where the maintenance release is conditional on the satisfactory completion of a test flight pursuant to subsection 571.10(4). The maintenance release in the journey log does not contain that condition.

Subsection 571.10(4) of the CARs, Maintenance Release:

(4) Where a person signs a maintenance release in respect of maintenance performed on an aircraft, the satisfactory completion of which cannot be verified by inspection or testing of the aircraft on the ground, the maintenance release shall be made conditional on the satisfactory completion of a test flight carried out pursuant to subsections 605.85(2) and (3), by the inclusion of the phrase "subject to satisfactory test flight".

This section reveals that the test flight is required because the satisfactory completion of the maintenance cannot be verified by inspection or testing of the aircraft on the ground. As the satisfactory completion of the maintenance cannot be verified or tested on the ground, the verification and testing must be done while airborne, hence the caveat "subject to satisfactory test flight". The release gets completed pursuant to subsection 605.85(3) where, if the test flight results are satisfactory, the section requires that they are entered in the journey log.

In this instance there was no test flight. Therefore, there were no test flight results to enter in the journey log. There was a flight of June 26 subsequent to the maintenance being accomplished on June 18. The maintenance release was not made conditional on a satisfactory test flight. There is no indication that the flight was undertaken to verify and test the completion of the maintenance. In fact, the remarks column actually shows the purpose of the flight to be "training". The Minister cannot simply declare that the flight following the maintenance is a test flight, it must be undertaken for that purpose. Therefore, the Minister has failed to prove the first element of the offence, and the allegation is dismissed.

It must be that the Minister concluded that a test flight should have been performed, but that is not the allegation, rather it is that there was a failure to make entries in the journey log regarding a test flight. Although the necessity for a test flight is not before me and need not be answered, the only evidence in that regard was given by Mr. Parker, the Minister's witness who stated that he could not say if it was required or not.


Dismiss count 1

Uphold count 2    $250.00

Dismiss count 3                 

Total                   $250.00


Counts 1 and 3 are dismissed. The Minister has established all elements of count 2; therefore, count 2 is upheld. The penalty of $250 for count 2 is confirmed. That amount, 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
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)