Decisions

CAT File No. W-2174-33
MoT File No. SAP-5504-40699

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

William Paul Denomme, Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33 (1st Supp), s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 401.03(1)
Family Orders and Agreements Enforcement Assistance Act, s. 69(3)

Notice of Suspension- Family Orders and Agreements Enforcement Assistance Act


Review Determination
E. David Dover


Decision: April 19, 2001

Because there is no evidence before me, I find that the Minister did not provide evidence of notices or letters to the Respondent suspending his licences under either subsection 69(3) of the Family Orders and Agreements Enforcement Assistance Act or the Aeronautics Act. The monetary penalties listed as counts #1 to #10 assessed by the Minister are cancelled.

A review hearing on the above matter was held Thursday, February 22, 2001, at 10:00 hours at the Federal Court of Canada in Edmonton, Alberta.

The witness, excepting Mr. Denomme, was excused from the courtroom prior to the commencement of proceedings.

There were no pre-hearing conferences held between the Applicant and the Respondent.

BACKGROUND

On September 12, 2000, the Minister of Transport assessed a monetary penalty of $1,000.00 against Mr. Denomme, the Respondent, pursuant to section 7.7 of the Aeronautics Act for allegedly having contravened 10 counts of subsection 401.03(1) of the Canadian Aviation Regulations (CARs) from January 17, 2000 to February 24, 2000.

THE LAW

Subsection 401.03(1) of the CARs states:

401.03 (1) No person shall act as a flight crew member or exercise the privileges of a flight crew permit, licence or rating unless

(a) subject to subsection (2) and sections 401.19 to 401.27, the person is the holder of, and can produce while so acting and while exercising such privileges, the appropriate permit, licence or rating; and

(b) the person is the holder of, and can produce while so acting and while exercising such privileges, a valid and appropriate medical certificate.

OPENING STATEMENTS

Mr. R. J. McFarlane, case presenting officer for the Minister of Transport, stated that a medical doctor advised him that Mr. Denomme was operating as a private and commercial pilot while his licences were suspended. It was Mr. McFarlane's objective to show through testimony of a witness and presentation of documentation as evidence that this was the case.

Mr. Denomme made no opening statement.

FOR THE APPLICANT-The Minister of Transport

Mr. R. L. McFarlane presented one witness, Mr. Daniel Stelman, who was duly sworn.

Mr. Stelman stated that Transport Canada employed him as an inspector with the Aviation Enforcement Branch. He testified that in December of 1999 a Doctor Fernando advised Transport Canada that Mr. Denomme was operating as a commercial helicopter pilot when his licences were suspended.

Mr. Stelman stated that he contacted an official with Provincial Helicopters and obtained copies of the journey log books for two helicopters.

Exhibit M-1 Copy of pages 0575, 0576 and 0577 of the journey log book for helicopter C-FPHB. The entries indicate that Mr. Denomme flew this helicopter between January 17 and February 12, 2000.

Exhibit M-2 Copy of page 0522 of the journey log book for helicopter C-FYUN. The entries indicate that Mr. Denomme flew this helicopter between February 20 and 24, 2000.

Exhibit M-3 Mr. Stelman presented an outline of the air personnel licensing system (six pages).

Mr. Stelman testified that these records indicate that as of November 1, 1999, Mr. Denomme's medical certificate, commercial pilot licence—aeroplane and commercial pilot licence—helicopter were suspended indefinitely. Mr. Stelman stated that he undertook background checks on Mr. Denomme but he was unable to contact him. Mr. Stelman also testified that he contacted the Ottawa office to confirm the fact that the suspensions of Mr. Denomme's licences were in effect.

Exhibit M-4 Department of Transport certificate indicating that as of December 10, 1999 Mr. Denomme's licences were suspended and this document was issued under seal by Mr. William J. McCullough as Secretary for the Department of Transport.

Mr. Stelman read this certificate into the record. He concluded that he wrote to Mr. Denomme but received no response.

Cross-examination

There was no cross-examination or questions presented by Mr. Denomme.

FOR THE RESPONDENT-Mr. William Paul Denomme

Mr. Denomme was sworn in as a witness. He stated that he had not received any notice of suspension. He also stated that he had not received a copy of Exhibit M-4 known as the "Secretary's Certificate."

Mr. Denomme entered the following exhibits:

Exhibit D-1 This document outlines subsection 401.03(1) of the CARs, and Mr. Denomme stated that in his opinion his licences were valid.

Exhibit D-2 This document was given to Mr. Denomme by Mr. Stelman. It outlines the actions of Dr. Fernando, aviation medical officer, as well as the fact that Mr. Denomme flew for a number of helicopter companies prior to his suspension. (Remote, North Central and Resource).

He did, however, fly for Provincial Helicopters after December 10, 1999 which is the date shown by Transport Canada as the date of suspension. The exhibit indicates that Transport Canada was unable to contact Mr. Denomme. The exhibit also outlines that Mr. Denomme's licences were suspended under the Family Orders and Agreements Enforcement Assistance Act.

Exhibit D-3 Medical Examination Report. This document dated November 19, 1999 states that Mr. Denomme was fit to fly.

Exhibit D-4 Handwritten note dated January 4, 2000 authored by Mr. Stelman. The exhibit states that Ottawa is sending out a new notice to include the suspension of Mr. Denomme's medical certificate.

Mr. Denomme stated that in prior years he had failed a medical examination and had at that time returned his licence to Transport Canada. He stated that he had not received any notices of suspension and considered his licences to be still valid.

Cross-examination

Mr. Denomme stated that the helicopters shown in Exhibit M-1 and M-2 did not belong to Resource Helicopter.

Mr. Stelman was recalled and stated that the December 10, 1999 suspension did not include all the licences destined for suspension but that Ottawa was going to re-issue the suspensions as outlined in his handwritten note dated January 4, 2000.

The evidentiary record was closed.

CLOSING STATEMENTS

Mr. McFarlane stated that Exhibits M-1 and M-2 proved that Mr. Denomme flew the helicopters following the date of suspension by Transport Canada.

Mr. Denomme reviewed his position that he had not received the notices of suspension. He stated that he was still in possession of his licences and that he was aware that he had not made his family support payments.

ANALYSIS

We have a situation where the Minister states that the Respondent's licences are suspended.

The Respondent states that he has not received any notices that his licences are suspended and considers these licences to be valid.

The Minister in Exhibit M-3, page 1 refers to "Justice Suspension-Indefinite." There was no testimony or documentation as to what this means.

The Respondent in Exhibit D-2 presents the Transport Canada document, which refers to the Family Orders and Agreements Enforcement Assistance Act.

The question now is what procedure must be followed by the Minister to ensure that the Respondent is aware and properly served with the appropriate notices.

Sections 67 to 78 of the Family Orders and Agreements Enforcement Assistance Act detail the actions taken by the various Ministers to enforce the Act. Section 69 states:

Obligations of Appropriate Ministers

69.(1) On being informed of a licence denial application in respect of a debtor, an appropriate Minister shall immediately determine whether the debtor is the holder of a schedule licence issued by the appropriate Minister.

(2) If an appropriate Minister determines that a debtor is the holder of a schedule licence, the appropriate Minister shall suspend the schedule licence and, where applicable, refuse to renew the schedule licence.

(3) An appropriate Minister who takes any action under subsection (2) against a debtor shall send the debtor a notice in writing informing the debtor that the action has been taken.

There is no evidence that either Minister undertook the action outlined in subsection 69(3).

DETERMINATION

Because there is no evidence before me, I find that the Minister did not provide evidence of notices or letters to the Respondent suspending his licences under either subsection 69.(3) of the Family Orders and Agreements Enforcement Assistance Act or the Aeronautics Act.

The monetary penalties listed as counts #1 to #10 assessed by the Minister are cancelled.

E. David Dover
Member
Civil Aviation Tribunal