Decisions

CAT File No. W-1880-41
MoT File No. SAP-5504-Z-33706

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Furniss Holdings Ltd., Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, s. 7.7, 8.4(1)
Canadian Aviation Regulations, SOR/96-433, s. 103.08, 605.03(1)

Approval of Foreign Authority, Flight over Foreign Territory


Review Determination
Sandra Lloyd


Decision: April 4, 2000

I find that the Minister has proved on a balance of probabilities that the Respondent Furniss Holdings Ltd. contravened subsection 605.03(1) of the Canadian Aviation Regulations and I confirm the assessed penalty of $250.00. That amount is payable to the Receiver General for Canada and 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 Tuesday, March 14, 2000 at 10:00 hours at the Law Courts Building in Whitehorse, Yukon.

BACKGROUND

The Notice of Assessment of Monetary Penalty in this matter is addressed to Furniss Holdings Ltd. and reads, in part, as follows:

On or about the 10th day of April 1999, at or near Tok, Alaska, U.S.A., Furniss Holdings Ltd., did operate an aircraft, Canadian registration C-GDZX, in flight, while not in compliance with the conditions set out in the flight authority, to wit condition 1 of the Specific Purpose Flight Permit which states: "Approval from foreign air authority is required prior to flight over their territory," contrary to section 605.03(1) of the Canadian Aviation Regulations.

The foregoing provision(s) has/have been designated pursuant to Section 103.08 of the Canadian Aviation Regulations and the procedures in Sections 7.7 to 8.2 of the Aeronautics Act respecting monetary penalties apply.

The total assessed penalty of $250.00 must be paid on or before 7th September 1999...

The penalty was not paid and the Minister referred the matter to this Tribunal.

The Notice of Hearing in this matter was sent by registered mail to Furniss Holdings Ltd. to a Calgary address. At the hearing, Mr. Koosel for the Minister advised that he had sent a disclosure package to Mr. Richard Furniss, principal of Furniss Holdings Ltd., to the same Calgary address, which address Mr. Furniss had given him. Mr. Koosel said that Mr. Furniss had indicated to him in telephone conversations that he did not want a hearing and that once he received the disclosure package, the penalty would be paid. However, the penalty remained unpaid at the date of the hearing.

The hearing commenced at 10:00 a.m., adjourned for 15 minutes to wait for an appearance by Furniss Holdings Ltd., then proceeded in accordance with subsection 7.9(2) of the Aeronautics Act.

THE LAW

Subsections 7.9(2) and 8.4(1) of the Aeronautics Act

7.9 ...

(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.

8.4 (1) The registered owner 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 owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

Subsection 605.03(1) of the Canadian Aviation Regulations (CARs)

Flight Authority

605.03 (1) No person shall operate an aircraft in flight unless

(a) a flight authority is in effect in respect of the aircraft;

(b) the aircraft is operated in accordance with the conditions set out in the flight authority; and

[...]

Chapter 507 of the Airworthiness Manual — Flight Authority Standards

507.04 Issue of a Flight Permit

(1) Flight permits shall only be issued on a temporary (12 months or less) basis where the aircraft in respect of which an application is made does not conform to the conditions of issue for a C of A or a Special C of A. A flight permit is issued in one of the following classifications:

[...]

(b) Specific Purpose.

[...]

(3) Flight Permit – Specific Purpose

A specific purpose flight permit is issued for an aircraft which does not conform to the applicable airworthiness standards, but is capable of a safe flight. It provides a flight authority in circumstances when a certificate of airworthiness is invalidated, or there is no other certificate or permit in force.

Section 103.08 of the CARs

Designated Provisions

103.08 (1) The provisions set out in column I of the schedule to this Subpart are hereby designated as provisions the contravention of which may be dealt with under and in accordance with the procedure set out in sections 7.7 to 8.2 of the Act.

(2) The amounts set out in column II of the schedule are the maximum amounts payable in respect of a contravention of the provisions set out in column I.

EVIDENCE

The Minister presented the following documents, regarding C-GDZX, as evidence:

  • M-1 Letter from Transport Canada dated April 9, 1999 constituting a flight permit
  • M-2 Statement of Lost or Destroyed Certificate of Registration dated April 8, 1999 signed by Richard A. Furniss
  • M-3 Letter from Transport Canada dated April 8, 1999 constituting a temporary Certificate of Registration
  • M-4 Reissued Certificate of Registration dated April 20, 1999
  • M-5 Recovered original Certificate of Registration dated June 20, 1990 (two pages)
  • M-6 Printout from C.C.A.R.C.S. dated June 9, 1999 (two pages)
  • M-7 Letter dated June 10, 1999 from the Federal Aviation Administration (FAA) to Transport Canada with photos attached (eight pages)
  • M-8 Letter dated June 11, 1999 from the FAA to Transport Canada

DISCUSSION

The documentary evidence shows that on April 10, 1999, Furniss Holdings Ltd. was the registered owner of PA-18 C-GDZX. At that time, a flight permit for the specific purpose of a ferry flight for exportation, Exhibit M-l, was in effect for that aircraft. That flight permit provided that approval from a foreign air authority was required prior to flight over their territory.

The letters from the FAA, Exhibits M-7 and M-8, show that C-GDZX landed in Tok, Alaska on April 10, 1999, and that no approval from the FAA had been obtained for that flight. This was in violation of the flight permit (M-l) and thus a contravention of subsection 605.03(1) of the CARs.

Subsections 103.08(1) and (2) of the CARs and the schedule thereto provide that a maximum penalty of $5,000 may be levied against a corporation in respect of a contravention of subsection 605.03(1). I find therefore that the assessed penalty of $250.00 is reasonable in the circumstances.

I find that the Minister has proved on a balance of probabilities that the Respondent Furniss Holdings Ltd. contravened subsection 605.03(1) of the CARs and I confirm the assessed penalty of $250.00.

Sandra K. Lloyd
Member
Civil Aviation Tribunal