Decisions

CAT File No. W-1877-33
MoT File No. SAP-5504-P365198-34112

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

David Felix Comeau, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, ss. 7.7, 8.2
Canadian Aviation Regulations, SOR/96-433, s. 103.03

Canadian aviation document, Notice, Failure to Surrender a Canadian Aviation Document, Failure to Appear at Hearing


Review Determination
E. David Dover


Decision: December 20, 1999

I find that Mr. David Felix Comeau did contravene section 103.03 of the Canadian Aviation Regulations, and I confirm the Minister's decision to issue a monetary penalty of $500.00. 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 Wednesday, December 15, 1999 at 10:00 hours at the Court House, in Fort McMurray, Alberta.

The witness was sworn in by the attending court reporter. The witness was excused from the review hearing prior to the commencement of the proceedings. There were no pre-hearing conferences held between the parties.

BACKGROUND

On July 19, 1999, the Minister of Transport assessed a monetary penalty of $500.00 against David Felix Comeau pursuant to section 7.7 of the Aeronautics Act.

It is alleged Mr. Comeau contravened section 103.03 of the Canadian Aviation Regulations (CARs) in that being a person who was issued a Canadian aviation document, namely a pilot licence #P365198, which was suspended effective May 5, 1999, he did fail to surrender the said document to the Minister immediately after the effective date.

NOTICE

Prior to commencement of the presentation of evidence and the engagement of argument it was obvious that Mr. Comeau was not in attendance at the hearing.

I recessed the hearing for 15 minutes.

During this period I checked with the Civil Aviation Tribunal Office in Ottawa and the Court Secretary in Fort McMurray to determine if Mr. Comeau had left a message at either of these facilities concerning today's hearing.

There was no communication from Mr. Comeau to either facility.

After a period of 15 minutes I reconvened the hearing with instructions to the case presenting officer to proceed as if a normal hearing was taking place.

FOR THE APPLICANT, THE MINISTER OF TRANSPORT

Mr. Yanik, the case presenting officer, introduced 11 documents as evidence.

Exhibit M-l This is the Appeal Determination[1] rendered March 9, 1999 confirming the original decision to support the Minister's decision to suspend Mr. Comeau's licence for a 30-day period.

Exhibit M-2 Fax transmission from Mary Cannon (CAT) to Rick Pollock (MoT) enclosing a copy of the Appeal Determination.

Exhibit M-3 Copy of a letter from Mary Cannon (CAT) to Rick McFarlane (MoT) indicating that Canada Post Corporation had delivered the Appeal Determination to Mr. Comeau.

Exhibit M-4 Copy of Canada Post delivery document dated April 20, 1999 indicating that Mr. Comeau had received the Appeal Determination.

Exhibit M-5 Fax transmission from Mary Cannon (CAT) to Cheryl (MoT) forwarding Canada Post delivery document.

Exhibit M-6 Registered letter from Mr. J. R. Pollock (MoT) to Mr. Comeau advising him that the Minister had not received Mr. Comeau's licence.

There is no evidence that Mr. Comeau received this letter.

Exhibit M-7 Canada Post delivery confirmation indicating that "the customer was not available..." to receive the letter from Mr. Pollock dated June 15, 1999 (Exhibit M-6).

Exhibit M-8 Notice of Assessment of Monetary Penalty to David Felix Comeau dated July 19, 1999 and signed by N. C. Muffitt (MoT).

Exhibit M-9 This exhibit contains the affidavit of service of the Notice of Assessment of Monetary Penalty executed by Cst. C. L. Mehdizadeh of the Fort McMurray RCMP affirming service of this document on Mr. Comeau on July 20, 1999.

There is also a letter from Mr. Muffitt to the RCMP requesting service of the Notice of Assessment of Monetary Penalty dated July 19, 1999.

Exhibit M-10 This letter dated November 24, 1999 from Mr. Yanik discloses to Mr. Comeau all information pertaining to the Transport Canada investigation and puts Mr. Comeau on notice of the Tribunal hearing in Fort McMurray on December 15, 1999.

There is no evidence that Mr. Comeau received this document, as Canada Post delivery confirmation indicates that Mr. Comeau was unavailable for delivery.

Exhibit M-11 Mary Cannon of the Tribunal issued this Notice of Hearing on December 2, 1999 to Mr. David Comeau.

Cpl. Berthiaume of the RCMP in Fort McMurray accomplished service of this Notice on Mr. Comeau on December 9, 1999 at 18:20 hours.

WITNESS

Mr. J. R. Pollock is a Civil Aviation Inspector with Transport Canada based in Edmonton, Alberta.

Mr. Pollock testified that he issued the letter dated June 15, 1999 to Mr. Comeau requesting the return of Mr. Comeau's licence to the Minister. He also stated that he had no proof that Mr. Comeau received his letter as it was returned unclaimed.

Mr. Pollock stated that on numerous times he had tried to telephone Mr. Comeau. He stated that he had talked to a Laura Barnes and she had given him Mr. Comeau's cell telephone number. Mr. Pollock left messages on that telephone and none of these messages was returned.

Mr. Pollock stated that he monitored the main telephone number in the Transport Canada office in Edmonton to determine if Mr. Comeau was returning his calls. There is no record of any calls from Mr. Comeau.

CLOSING STATEMENT

Mr. Yanik indicated that Mr. Comeau had been delivered all the relative documents either by regular, registered mail or personal service by the RCMP in Fort McMurray.

Mr. Yanik stated that all attempts to contact Mr. Comeau by telephone were unsuccessful.

THE LAW

Section 103.03 of the CARs states:

103.03 Where a Canadian aviation document has been suspended or cancelled, the person to whom it was issued shall return it to the Minister immediately after the effective date of the suspension or cancellation.

ANALYSIS

I am convinced that Mr. Comeau knew his licence was suspended. He was present at both a Tribunal Review Hearing[2] on November 4, 1998 and a Tribunal Appeal Hearing on February 26, 1999 in Fort McMurray. Both of these hearings confirmed the Minister's action in suspending Mr. Comeau's licence.

I am convinced that Mr. Comeau received the Notice of Assessment of Monetary Penalty dated July 19, 1999.

I am convinced that Mr. Comeau was aware of the hearing which was convened in Fort McMurray on December 15, 1999 to hear of his refusal to return his pilot licence to the Minister following his suspension of flying privileges.

Contained in subparagraph 7.9(3)(b)(i) of the Aeronautics Act are the following conditions:

7.9 (1) On receipt of the copy of the notice forwarded by the Minister under subsection 7.8(2), the Tribunal shall

(...)

(2) where a person served with a request under subsection (1) fails to appear before the member of the Tribunal at the time and place set out in the request, the member of the Tribunal shall consider all the information that is presented to him by the Minister in relation to the contravention referred to in the request.

(3) Where, at the conclusion of the proceedings in respect of allegations against a person referred to in subsection (2), the member of the Tribunal determines that

(...)

(b) the person has contravened the designated provision that the person is alleged to have contravened, the member of the Tribunal shall forthwith

(i) issue to the Minister a certificate in such form as the Governor in Council may by regulation prescribe, setting out the determination of the member and setting out therein the amount that was specified in the notice that was sent to the person under subsection 7.7(1) in respect of the contravention, and

(ii) by registered or certified mail, send to the person at the person's last known address a copy of the certificate issued under subparagraph (i).

CONCLUSION

In the examination of the evidence I am convinced that Mr. Comeau knew of his suspension.

I am convinced that Mr. Comeau was fully aware of the hearing convened on December 15, 1999 in Fort McMurray to give him an opportunity to defend his actions in not returning his licence to the Minister of Transport.

By not appearing at the hearing and refusing to communicate with any concerned individual at the Civil Aviation Tribunal or Transport Canada either directly or through counsel, I can only assume that Mr. Comeau is not aware that to hold a Canadian aviation document is a privilege as outlined in sections 7.7 to 8.2 of the Aeronautics Act.

DETERMINATION

I find that Mr. David Felix Comeau did contravene section 103.03 of the Canadian Aviation Regulations, and I confirm the Minister's decision to issue a monetary penalty of $500.00.

E. David Dover
Member
Civil Aviation Tribunal


[1] David Felix Comeau v. Minister of Transport, CAT File No. W-1671-02 (Appeal).

[2] David Felix Comeau v. Minister of Transport, CAT File No. W-1671-02 (Review).