Decisions

CAT File No. W-2503-33
MoT File No. SAP-5504-44792

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

William Paul Denomme, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, s. 401.03(1)
Family Orders and Agreements Enforcement Assistance Act, s.69(3)

Notice of Suspension, Pilot proficiency check, Suspension of CAD -- commercial pilot licence, New evidence at appeal level, Flying without permit, Mitigating factors, Flying without medical certificate, Family Orders and Agreements Enforcement Assistance Act


Review Determination
Allister W. Ogilvie


Decision: October 29, 2002

The Minister has proven the alleged violations on a balance of probabilities. Mr. Denomme has contravened subsection 401.03(1) of the Canadian Aviation Regulations as alleged. The penalty of $1,000 per violation is appropriate as the sanction for a first offence under the Transport Canada guidelines. Payment of the total penalty of $3,000 is to be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within 15 days following service of this determination.

A review hearing on the above matter was held Thursday, October 17, 2002 at 10:00 hours at Public Works Canada in Edmonton, Alberta.

BACKGROUND

The Family Orders and Agreements Enforcement Assistance Act (FOAEAA) is federal legislation that assists the enforcement of provincial support orders and support provisions that are in arrears. This is accomplished by allowing a provincial enforcement service to make application to a federal department to have certain licence documents under that department's jurisdiction suspended, or for the refusal to renew such documents, until such time as the person in arrears in support payment has satisfied his or her obligations regarding the support payment.

A provincial agency had made application to Transport Canada to suspend the pilot licences of a Mr. William Paul Denomme because of alleged arrears in support payment. The Minister of Transport purported to suspend Mr. Denomme's commercial pilot licences and medical certificate as of December 10, 1999.

Transport Canada received advice that Mr. Denomme had operated an aircraft after that date. Consequently it alleged that he had violated, on 10 different occasions, subsection 401.03(1) of the Canadian Aviation Regulations (CARs) that makes it an offence to act as a flight crew member unless that person has the appropriate licence.

These violations were the subject of a Tribunal hearing in Edmonton Alberta on February 22, 2001.[1] At that hearing Mr. Denomme's defence was that he had not received any notices of suspension of his licence. The Tribunal member agreed, finding that there was no evidence before him that the Minister gave Mr. Denomme the required notice in writing stipulated in the FOAEAA. Therefore, the member cancelled the monetary penalties.

Transport Canada has once again alleged that Mr. Denomme has exercised the privileges of his commercial pilot licence when he did not hold a valid and appropriate medical certificate. The allegations are as follows:

OFFENCE #1—CARs 401.03(1)(b)

On or about the 28th day of May 2001, at or near St. Albert, Alberta, while not being the holder of a valid and appropriate Medical Certificate, you did exercise the privileges of a Commercial Pilot License[sic]–Helicopter, a violation of section 401.03(1)(b) of the Canadian Aviation Regulations.

MONETARY PENALTY—$1,000

OFFENCE: CARs 401.03(1)(b)

On or about the 29th day of May, 2001, at or near Lloydminster, Alberta, while not being the holder of a valid and appropriate Medical Certificate, you did exercise the privileges of a Commercial Pilot License [sic]–Helicopter, a violation of section 401.03(1)(b) of the Canadian Aviation Regulations.

MONETARY PENALTY—$1,000

OFFENCE: CARs 401.03(1)(b)

On or about the 5th day of July, 2001, at or near La Ronge, Saskatchewan, while not being the holder of a valid and appropriate Medical Certificate, you did exercise the privileges of a Commercial Pilot License [sic]–Helicopter, a violation of section 401.03(1)(b) of the Canadian Aviation Regulations.

MONETARY PENALTY—$1,000

TOTAL MONETARY PENALTY—$3,000

As the monetary penalty was not paid, Transport Canada has applied to the Tribunal for a hearing which brings about today's proceedings.

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.

Section 69 of the FOAEAA states:

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.

[...]

SCHEDULE

[...]

LICENCES

Aeronautics Act

Commercial pilot licence–aeroplane

Commercial pilot licence–helicopter

[...]

Medical certificate

To prove these allegations the Minister must establish, for each offence, that Mr. Denomme, on the day and place in question in each allegation, exercised the privileges of a commercial pilot licence-helicopter, when he did not hold a valid and appropriate medical certificate.

If I find that he did contravene paragraph 401.03(1)(b) of the CARs because he did not hold a valid and appropriate medical certificate because of the operation of the FOAEAA, I must also be satisfied that Mr. Denomme received appropriate notice of his licence and medical suspension under that statute.

EVIDENCE

A Secretary's certificate signed by the acting Secretary of the Department of Transport establishes that as of December 10, 1999 the commercial pilot licence–helicopter, commercial pilot licence–aeroplane and the medical certificate issued to William Paul Denomme were suspended. Since December 10, 1999, the Minister of Transport has not reinstated the privileges of either of the licences, and no medical certificate has been issued or renewed.

During the course of the investigation into Mr. Denomme's flying activities certified true copies of two aircraft journey logs were made by RCMP Constable Cathy Shepherd. The log for a Bell 206B, C-FWGS shows Mr. Denomme as crew on May 28, 2001, at St. Albert, Alberta. On May 29, 2001, he is shown as crew near Lloydminster, Saskatchewan. The journey log for an Aerospatiale AS 350D, C-GQCW shows Mr. Denomme as crew on July 5, 2001, near La Ronge, Saskatchewan. These logs were voluntarily provided for copying by a representative of Mr. Denomme's then employer, Heli-Lift International Inc.

Mr. R. Pollock, the Acting Regional Manager of Enforcement in the Prairie and Northern Region testified to having had several conversations with Mr. Denomme wherein he felt that he had made it clear to Mr. Denomme that his licences were suspended, notwithstanding the prior Tribunal determination. Mr. Pollock's notes reveal that Mr. Denomme admitted to him that he had received letters notifying him of the licence and medical suspensions.

Mr. Larry Cundy is the Chief of Personnel Licensing for Transport Canada. He explained that three separate letters had been sent to Mr. Denomme. By letter dated August 10, 1999, Mr. Denomme was advised that his commercial pilot licence–aeroplane was suspended as of August 24, 1999, because of action taken pursuant to the FOAEAA. As Transport Canada became aware that he renewed a medical certificate, he was advised by letter of December 10, 1999, that the FOAEAA also required the suspension of his medical certificate effective on December 10, 1999. Mr. Cundy sent a further letter of clarification to him on December 31, 1999. It stated that in addition to his medical certificate, his commercial pilot licence–aeroplane and his commercial pilot licence–helicopter were suspended.

Mr. Denomme did not appear at the hearing. He submitted a signed fax dated October 16, 2002. In it he asked the Tribunal to consider seven different points. The fax was not in affidavit form, nor was it a sworn statement. However, the Minister did not object to its inclusion in the evidence as Exhibit D-1. Among the assertions I find four to be germane to these proceedings. Mr. Denomme stated:

Firstly—I never received any notification, that Justice was making application to suspend my licences.

[...]

Thirdly—When suspending someone's licence—or taking away their livelihood, sending a letter by Registered Mail only makes sense. I received no letters from L. Cundy, by Registered Mail.

Fourthly—David Dover found in my favour at the CAT Hearing W-2174-33. I would like you to take his findings into consideration.

[...]

Six[th]ly—Regarding Mr. Pollock's statement—I do not have any disregard for the Minister, the Operator and Public Interest. When I flew for Heli-Lift, I undoubtedly felt my licences were in good standing.

DISCUSSION

The elements of the offence that are required to be established were set out earlier. A perusal of the evidence shows that Mr. Denomme was crew of two different helicopters on the dates and places stated in the allegations. Mr. Denomme's statement verifies his flight activity at the sixth point where he states in part: "When I flew for Heli-Lift, I undoubtedly felt my licences were in good standing." I find that to be the crew member of a helicopter is exercising the privilege of a commercial pilot licence–helicopter. The Secretary's certificate establishes that, on those dates, he did not hold a valid appropriate medical certificate. The evidence of Mr. Cundy, through his correspondence to Mr. Denomme reveals that the medical certificate was not suspended because of any medical infirmity but rather through the operation of the FOAEAA. Thus each element of the alleged violation of subsection 401.03(1) of the CARs has been made out. I find that Mr. Denomme did exercise the privileges of a commercial pilot licence–helicopter while not being the holder of a valid and appropriate medical certificate. The medical certificate was not valid through the operation of the FOAEAA.

THE ISSUE

The outstanding issue is whether Mr. Denomme had appropriate notice under the Act. I find that he did. The Secretary's certificate in this proceeding and the one in evidence at the hearing before Mr. Dover, on February 22, 2001 both show the suspension date as of December 10, 1999. The certificate at this proceeding reveals that the Minister has not issued or renewed a medical certificate to Mr. Denomme since that date. As Mr. Denomme participated in that hearing he must be taken to know that his licences and medical certificate were then suspended.

Mr. Pollock testified to having a discussion with him, wherein he advised him that his various documents were suspended. It is certain that Mr. Denomme had knowledge that his licence and certificates were suspended, but did he have notice?

At the previous hearing the member addressed subsection 69(3) of the FOAEAA, the section that requires the Minister taking action against a debtor to send the debtor a notice in writing informing him that the action has been taken. He declared that there was no evidence that the Minister undertook the action outlined in subsection 69(3). Consequently he cancelled the monetary penalties that had been imposed. That action did not have the effect of lifting the suspension. The member had no power under section 7.7 of the Aeronautics Act to do so. Mr. Denomme cannot reasonably rely on that decision for a belief that his documents were no longer suspended.

In this instance I do have evidence before me that the Minister undertook the action outlined in subsection 69(3). The letters from Mr. Cundy to Mr. Denomme forming Exhibits M-12, M-13 and M-14 provide such notice. In Mr. Denomme's statement he says that he received no letters from L. Cundy by registered mail. That of course begs the question of how he knew the letters were from L. Cundy if he did not receive them. Subsection 69(3) does not make the use of registered mail mandatory but only says that a notice in writing must be sent. Mr. Cundy testified that none of the letters were returned.

Mr. Pollock's notes indicate that Mr. Denomme had admitted to him that he had received letters from Mr. Cundy regarding the suspensions. The evidence through Mr. Pollock is hearsay evidence. Mr. Denomme's statement is not sworn testimony. The more relaxed evidentiary procedures of the Civil Aviation Tribunal allow such evidence to be accepted. In this instance as each piece corroborates the other I can allow both sufficient weight to establish that Mr. Denomme did receive the letters. That facet is also corroborated by Mr. Cundy's direct testimony of having sent the letters and that they were not returned. On the totality of that evidence I find that Mr. Denomme did have notice as stipulated in subsection 69(3) of the FOAEAA.

In summary Mr. Denomme violated subsection 401.03(1) of the CARs on the three occasions stipulated in the notice. He had notice of the suspension of his licences and medical certificate pursuant to subsection 69(3) of the FOAEAA.

CONCLUSION

The Minister has proven the alleged violations on a balance of probabilities. Mr. Denomme has contravened subsection 401.03(1) of the CARs as alleged. The penalty of $1,000 per violation is appropriate as the sanction for a first offence under the Transport Canada guidelines.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1] CAT File No. W-2174-33.


Appeal decision
David S. Ahmed, Elizabeth M. Wieben, Faye H. Smith


Decision: May 1, 2003

On the basis of the evidence presented at review, we concur with the Tribunal Member's conclusion that Mr. Denomme breached subsection 401.03(1) of the Canadian Aviation Regulations. However, we reduce the penalty to a sum of $100 for each of the three contraventions for a total penalty of $300. We do not believe that a higher amount is required for deterrent purposes on the facts of this case. That amount, made payable to the Receiver General for Canada, must be received by the Civil Aviation Tribunal within 15 days of service of this determination.

An appeal hearing on the above matter was held Tuesday, February 18, 2003, at 10:00 hours at the Federal Court of Canada, in the city of Edmonton, Alberta.

BACKGROUND

The substance of this appeal is based on the allegation of the Minister that Mr. Denomme has exercised the privileges of his commercial pilot licence when he did not hold a valid and appropriate medical certificate. It is thus alleged that he breached paragraph 401.03(1)(b) of the Canadian Aviation Regulations (CARs) by operating an aircraft on three separate dates, being May 28, 29, and July 5, 2001, as set out in the Notice of Assessment of Monetary Penalty for which the Minister assessed a penalty of $1,000 each contravention for a total monetary penalty of $3,000.

To understand the nature of the Appellant's submissions, it is necessary to comment briefly on the procedural effect provided by the Family Orders and Agreements Enforcement Assistance Act (FOAEA) which is federal legislation enacted to provide assistance to the provincial enforcement services in achieving compliance with provincial support orders. The provincial enforcement service may apply to a federal department for the suspension or refusal to renew documents of entitlement under that department's jurisdiction which will remain so until the holder of the document satisfies the payment arrears as required under the provincial support orders.

Such application was made by the provincial agency to Transport Canada to suspend the pilot licences of Mr. William Paul Denomme due to alleged arrears in support payments. As of December 10, 1999, Mr. Denomme's commercial pilot licences and medical certificate were suspended.

Following these suspensions, Transport Canada alleged that Mr. Denomme had, on 10 separate occasions from January 17, 2000 to February 24, 2000, operated his aircraft while not being in possession of an appropriate licence, thereby contravening subsection 401.03(1) of the CARs.

These allegations were reviewed at a Tribunal hearing on February 22, 2001 in Edmonton, Alberta. There being no evidence the Notice of Suspension had been communicated to Mr. Denomme, the Tribunal Member accepted Mr. Denomme's defence that he had not received any notice of the suspension of his licences and cancelled the assessed monetary penalties.

Subsequent to the review hearing in February 2001 and the cancellation of the assessed monetary penalties, Transport Canada alleged in a further Notice of Assessment of Monetary Penalty dated April 2, 2002, that Mr. Denomme had again exercised the privileges of his commercial pilot licence when he did not hold a valid and appropriate medical certificate on May 28, 29 and July 5, 2001. As noted above, he was assessed a total monetary penalty of $3,000. Non payment of this assessed amount resulted in a review hearing before this Tribunal on October 17, 2002. The Tribunal Member at review found that the Minister had proven the alleged violations on a balance of probabilities and found that Mr. Denomme had received appropriate notice of the suspensions as required by the FOAEA Act. He confirmed the $1,000 penalty per violation, for a total assessed penalty of $3,000.

GROUNDS FOR APPEAL

Mr. Denomme appeals the Review Determination on grounds set out in his application for appeal dated November 15, 2002. In summary, he asserts that the Tribunal Member came to a wrong conclusion on the facts of the case, when he held that Mr. Denomme should have known that his licences and medical certificate were suspended indefinitely. He states that the Member further erred in holding that Mr. Denomme cannot reasonably rely on the Review Determination in the first review hearing in February 2001 for a belief that his documents were no longer suspended.

APPELLANT'S SUBMISSIONS

At the commencement of his submissions, Mr. Denomme suggested that he would like to file some documents for this appeal panel's consideration. He stated that the documents related to an agreement which Mr. Denomme reached with his ex-wife, some character references prepared by others on his behalf and a copy of a letter indicating a meeting with his lawyer. The appeal panel did not accept any of the three documents offered on the basis that they were not seen to be relevant to the issues to be decided by the panel.

Mr. Denomme stated that at the time of the first review hearing in February of 2001, he was unaware of the procedure under the FOAEA Act. He stated that the Tribunal Member in his Review Determination of October 29, 2002 explained it fully and that he has a clear picture of it now.

Addressing questions raised earlier by the panel, Mr. Denomme, in his final arguments, stated that he obtained a pilot proficiency check (PPC) in May of 2001. On that occasion the inspector conducting the PPC was a Transport Canada inspector. He stated that he was unaware that his documents were under suspension, and the check pilot from Transport Canada did not inform him of this fact either. In the result, he passed the PPC and states that he believed that he was operating the aircraft in good faith.

MINISTER'S SUBMISSIONS

Mr. Hector on behalf of the Minister cited authority for the assertion that findings of fact or credibility should not be overturned on appeal unless they are unreasonable.[1]

The Minister's representative stated that the Member found that the Minister had proved the elements of the alleged violations of subsection 401.03(1) of the CARs. He found that Mr. Denomme, on the day and place set out in each allegation, exercised the privileges of a commercial pilot licence—helicopter through tendering certified true copies of two aircraft journey logs. The logs were entered into evidence by Constable Cathy Shepherd of the RCMP who testified that she made photocopies of the logs having received them from a representative of the company, Heli-Lift International Inc. He further stated that Mr. Denomme's statement that "When I flew for Heli-Lift, I undoubtedly felt my licences were in good standing" corroborates the journey log entries.

The Minister had submitted as Exhibit M-1, a Secretary's Certificate that established that on the dates set out in the allegations Mr. Denomme did not hold a valid and appropriate medical certificate.

On the basis of the foregoing, the Minister's representative submitted that the Member's finding that the Minister had proved the elements of the alleged violations of subsection 401.03(1) of the CARs was not patently unreasonable.

The Minister tendered the following evidence at review in support of its submission that Mr. Denomme was served with the Notice of Suspension as required by subsection 69(3) of the FOAEA Act:

  • Exhibit M-12—letter to Mr. Denomme from Mr. Cundy dated August 10, 1999
  • Exhibit M-13—letter to Mr. Denomme from Mr. Cundy dated September 10, 1999
  • Exhibit M-14—letter to Mr. Denomme from Mr. Cundy dated December 31, 1999
  • Testimony of L. Cundy found in the Transcript, page 28, line 7 to page 35, line 22
  • Exhibit M-2—handwritten notes of Rick Pollock

Accordingly, the Minister's representative submits that the Member's finding that the Minister had served the notice of suspension of the medical certificate as required per subsection 69(3) above was not patently unreasonable.

DISCUSSION

On the basis of the evidence presented at review, we concur with the Tribunal Member's conclusion that Mr. Denomme breached subsection 401.03(1) of the CARs on the dates cited, being May 28, 29 and July 5, 2001.

Mr. Denomme for his part reiterates his defence of no knowledge that his documents were still suspended. This was the defence used successfully in the former review hearing in February, 2001 with the result that the penalties for the ten alleged flights were cancelled.

The Tribunal Member at the review hearing of October 2002 states that as Mr. Denomme participated in the earlier review of February 2001, he must be taken to know that his licences and medical certificate were then suspended. He also stated that the cancellation of the monetary penalties in the February 2001 hearing did not have the effect of lifting the suspension. The Member had no power under section 7.7 of the Aeronautics Act to do so. He therefore finds that Mr. Denomme cannot reasonably rely on that decision for a belief that his documents were no longer suspended. The Member, upon review of the evidence in exhibits M-12 to M-14 referred to above, being the letters sent from Mr. Cundy to Mr. Denomme, and the notes of the conversations between Mr. Denomme and Mr. Pollock, finds that Mr. Denomme did have the required notice.

We conclude as did the Member at review that the Minister did prove the alleged violations on a balance of probabilities. We agree with the conclusion reached by the Tribunal Member at review that Mr. Denomme knew or ought to have known that his documents were still suspended, notwithstanding the cancellation of the monetary penalties at the conclusion of the February 2001 review. We are, however, troubled by the confusion caused by Mr. Denomme's successful passing of the PPC when the Transport Canada inspector conducting the check ride ought to have known that the documents were suspended at that time. He should have checked Transport Canada records. This is so, despite the fact that Mr. Denomme may have presented his licence and medical certificate to the Transport Canada inspector since there appears to be no requirement to return the suspended documents to the Minister as is the case with suspensions under the Aeronautics Act per section 103.03 of the CARs.

We turn now to the assessment of penalty and state that when queried as to submissions regarding mitigation of sanction, the Minister's representative reiterated the amounts cited in the Notice. As the issue had not arisen at the review hearing, he was not able to help the panel as to the fact that Transport Canada had granted the PPC during the currency of the alleged suspension. This issue seemed not to have been discussed prior to the appeal hearing.

While we do not believe that this confusion negates the fact of the suspension itself, we do believe that it does serve to alert Transport Canada to review the effectiveness of its procedures. This case before us has a number of issues that the department ought to review to avoid such confusion in future cases. While the legislation apparently has no requirement for service other than by ordinary mail of the letter of suspension, we can think of no other case where a cancellation or suspension of such privileges is done other than by registered mail or personal service. In spite of the lesser requirement of the legislation, the department may want to consider additional measures for ease of proof in future cases.

DETERMINATION

Regarding penalty, we have considered the mitigating factors set out in the case of Minister of Transport v. Kurt William M. Wyer,[2] and while not wishing to thwart the well-meaning legislation, we do believe that the interests of this case would best be served by reducing the penalty to a sum of $100 for each of the three contraventions for a total penalty of $300. We do not believe that a higher amount is required for deterrent purposes on the facts of this case.

Reasons for Appeal Determination by:

Faye Smith, Chairperson

Concurred:

Dr. David Ahmed, Member
Elizabeth Wieben, Member


[1]Trent Wade Moore v. Minister of Transport, C-0138-33, Appeal Determination at page 4.

Minister of Transport v. Thomas Ritchie Phillips, C-0014-33, Appeal Determination at page 5.

[2] Minister of Transport v. Kurt William Wyer, O-0075-33, O-0075-33, Appeal Determination.