Decisions

TATC File No. W-2524-37
MoT File No. SAP-5504-46253

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Minister of Transport, Applicant

- and -

Lee Gordon, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 202.46(2)


Review Determination
E. David Dover


Decision: May 27, 2004

The Minister has proven the elements of the offence relating to subsection 202.46(2) of the Canadian Aviation Regulations. I uphold the Minister's decision to issue a sanction of $500.00 against Mr. Lee Gordon. This amount is to be made payable to the Receiver General for Canada and received by the Transportation Appeal Tribunal of Canada within fifteen days of service of this determination.

A review hearing on the above matters was held on Thursday, March 4, 2004 at 10:00 hours at the Federal Court of Canada, Scotia Place, 5th Floor, Court Room 3, 10060 Jasper Avenue, Edmonton, Alberta.

Prior to the commencement of evidentiary testimony it was agreed by both parties that both files would proceed simultaneously as all witnesses were familiar with both sanctions.

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

BACKGROUND

On October 1, 2001, concerning TATC File No. W-2379-37, a monetary penalty of $250.00 was assessed against Mr. Lee Gordon, the Respondent, pursuant to section 7.7 of the Aeronautics Act by the Minister of Transport claiming that Mr. Gordon had contravened the following provision:

OFFENCE - CARs 202.46(2)

On or about the 2nd day of July 2001, at or near Drayton Valley, Alberta, being the owner of an aircraft, to wit a Lazair Ultralight, Canadian registration C-IASW, where the Minister made a request pursuant to section 202.46(1) of the Canadian Aviation Regulations, that you as the owner of the aircraft inform the Minister of the location of the aircraft and whether or not the aircraft was serviceable, you did fail to comply with the request no later than seven days after receiving it, a violation of section 202.46(2) of the Canadian Aviation Regulations.

TOTAL MONETARY PENALTY - $250.00

Further

On May 7, 2002, concerning TATC File No. W-2524-37, a monetary penalty of $500.00 was assessed against Mr. Lee Gordon, the Respondent, pursuant to section 7.7 of the Aeronautics Act by the Minister of Transport claiming that Mr. Gordon had contravened the following provision:

OFFENCE #1 - CARs 202.46(2)

On or about the 24th day of December 2001, at or near Drayton Valley, Alberta, being the owner of an aircraft, to wit a Skye Treck Skyseeker MK III ultra light, Canadian registration C-ICIP, where the Minister made a request pursuant to section 202.46(1) of the Canadian Aviation Regulations, that you as the owner of the aircraft inform the Minister of the location of the aircraft and whether or not the aircraft was serviceable, you did fail to comply with the request no later than seven days after receiving it, a violation of section 202.46(2) of the Canadian Aviation Regulations.

TOTAL MONETARY PENALTY - $500.00

THE LAW

Canadian Aviation Regulations (CARs):

202.46 (1) The Minister may request that the owner of an aircraft inform the Minister, in writing, of the location of the aircraft and whether or not the aircraft is serviceable.

(2) Where the Minister makes a request pursuant to subsection (1), the owner shall comply with the request by not later than seven days after receiving it.

Opening Statements

The case presenting officer, Mr. Bill Curtain, stated that the Minister would call four witnesses and prove that the alleged offender, Mr. Lee Gordon, was the owner of two Canadian registered aircraft.

He further stated that Mr. Gordon was properly served with all documentation and had not complied with the requirement to inform the Minister of the whereabouts of the aircraft as required by subsection 202.46(2) of the CARs.

Mr. Gordon offered no opening statement.

FOR THE APPLICANT — The Minister of Transport

Mr. Bill Curtain called the first witness, Anna-Marie Borelli, who was sworn. Ms. Borelli stated that she was a licensing officer with Transport Canada located in Edmonton, Alberta. She indicated that she specialized in licensing and registration of aircraft.

Exhibit M-1 : Contains a number of definitions and subsection 202.46(2) of the CARs.

Exhibit M-2 : Application for registration of ultra-light aeroplanes. Ms. Borelli testified that this document was the application for registration for C-IASW, a Lazair dated November 5, 1999 and signed by Adam and Ruth Merkis-Hunt.

Exhibit M-3 : Certificate of registration (C of R). Ms. Borelli stated she issued the C of R for C-IASW to the Hunts on November 15, 1999.

Exhibits M-4 and M-5: Data base documentation.

Exhibit M-6 : Ms. Borelli testified that she had obtained a Secretary's certificate establishing that a C of R for the Lazair, registration C-IASW had been issued to Adam and Ruth Merkis-Hunt on November 15, 1999 and that no further registrations had been issued.

Exhibit M-7 : Notification of change of owner(s). Ms. Borelli stated that she received the completed change of owner document from Adam and Ruth Merkis-Hunt transferring C-IASW to Mr. Lee Gordon of P.O. Box 5385, Drayton Valley, AB on 01/03/15.

Exhibits M-8, M-9, M-10: Ms. Borelli testified that the above requests from her to Lee Gordon to comply with the transfer process were all ignored by Mr. Gordon.

Mr. Curtain stated that he wished to proceed with the second offence concerning the Skye Treck Skyseeker MKII registration C-ICIP. Mr. Curtain indicated that the documentation concerning this infraction had not been disclosed to Mr. Gordon as the registered mail had been returned to Transport Canada, and the RCMP had been unsuccessful on five different occasions in trying to serve Mr. Gordon.

Exhibit M-11 : Ms. Borelli confirmed that this exhibit contained a Secretary's certificate establishing that a C of R for the Skyseeker MK III serial number 3-210, registration marks C-ICIP had been issued to Allan Seiersen of Sky Adventure Flight Centre Ltd. on July 21, 1987.

She further confirmed that the exhibit contained a bill of sale for the Skyseeker, C-ICIP with the seller being Allan Seiersen and the buyer being Lee Gordon dated November 20, 1999. This document was signed by Lee Gordon and Allan Seiersen. Contained in this exhibit are two requests from Transport Canada to register C-ICIP.

The proceedings were recessed for five minutes to allow Mr. Gordon to review the documentation. Upon commencement of proceedings there was no objection to the entry of Exhibit M-11 as an exhibit.

Exhibit M-12 : Letters dated November 25, 1999, January 18, 2000 and November 2, 2000 requesting Mr. Gordon to register C-ICIP.

Exhibit M-13 : Ms. Borelli testified that she was aware of a letter from Marvin Regier, Superintendent, Aviation Licensing, Transport Canada to Lee Gordon outlining section 202.46 requiring the location and serviceability of C-ICIP. This letter was registered and accepted by Lee Gordon on December 17, 2001.

Cross-examination

Mr. Gordon explored the basis under which the Minister could register an aircraft. Ms. Borelli agreed that there was no request from Mr. Gordon to register either aircraft. There was discussion about the jurisdiction of the Canadian law, which I do not feel was relevant to cross-examination procedure.

Mr. Gordon made a motion to remove all evidence contained in Exhibits M-7, M-8, M-10, M-11 and M-12 from the evidentiary record. Mr. Gordon stated the basis for the striking of evidence is because of the use of upper and lower case letters in spelling his name. He further stated by doing this Transport Canada could be referring to a different Lee Gordon or perhaps a corporation. He further stated his real name was Wallace Lee Gordon.

Ruling

Because the questioning was outside the normal procedure for cross-examination and the difference between upper case and lower case of a person's name is beyond consideration, the request was denied.

Mr. Bill Curtain called Mr. Bruce MacDonald who stated that he was employed as an investigator with Transport Canada in Edmonton, Alberta. He stated that he was assigned a file concerning Mr. Lee Gordon when General Aviation Licensing was having trouble making contact with Mr. Gordon.

The subject of the file was two previous owners had sold an aircraft to Mr. Lee Gordon and Mr. Gordon had not completed his side of the transaction by transferring the registration and paying the required transfer fee.

Exhibit M-14 : Mr. MacDonald placed in evidence a registered letter from himself to Mr. Gordon dated August 1, 2001. This letter referred to the requirement to register C-IASW. Mr. Gordon refused this letter at the postal facility.

Exhibit M-15 : Case report showing the history of Transport Canada's actions to try to have Mr. Gordon comply with the regulations and the resultant scope of sanctions.

Exhibit M-16 : List of applicable recommended sanctions.

Exhibit M-17 : This exhibit contains a letter from Mr. N.C. Muffitt to Corporal Gordon Chammen outlining the case against Mr. Gordon and requesting assistance in serving the Notice of Assessment of Monetary Penalty on Mr. Gordon. The Affidavit of Service confirms service on Mr. Gordon on October 9, 2001.

Exhibit M-18 : Mr. MacDonald stated that he sent the disclosure package by registered mail to Mr. Gordon on January 30, 2002 and Mr. Gordon accepted this on February 11, 2002 at the Drayton Valley postal facility.

Exhibit M-19 : Mr. MacDonald stated that he obtained a legal opinion from Mr. Glenn Hector of Transport Canada indicating that an ultra-light aeroplane, even though it is partially assembled or in a kit form but has been issued registration lettering, has to conform to section 202.46 of the CARs.

Exhibit M-20 : Mr. MacDonald testified he sent a registered letter to Mr. Lee Gordon on January 21, 2002 indicating that he was in possible violation of subsection 202.46(2) of the CARs for not reporting the location and serviceability of a Skyseeker Mark III ultra-light aeroplane he had purchased from Allan Seiersen of Peers Alberta on November 20, 1999. Mr. Gordon accepted delivery of this letter on January 28, 2002 at the Drayton Valley postal facility.

Exhibit M-21 : Mr. MacDonald testified Mr. Gordon was exhibiting a total disregard for his obligations under the Act and as this was his second offence within a six-month period; a monetary penalty of $500.00 was recommended.

Exhibit M-22 : Mr. MacDonald stated that Mr. N. C. Muffitt, Regional Manager, Aviation Enforcement, Transport Canada, issued a Notice of Assessment of Monetary Penalty for $500.00 to Lee Gordon on March 26, 2002 for an alleged violation of subsection 202.46(2) of the CARs. This package was unclaimed by Mr. Gordon and the notice returned to Transport Canada.

Exhibit M-23 : Letter from the Tribunal postponing the hearing scheduled for Mr. Gordon.

Cross-examination

Mr. Gordon asked Mr. MacDonald to clarify the confusion created when ones name is capitalized it could refer to a corporation rather than an individual. Mr. Gordon asked if the single line through a capital "S" would make the sanction payable in Mexican Pesos. Mr. MacDonald was unable to address this line of questioning.

Mr. Gordon objected to being referred to as a "subject" as this would make him inferior when in fact he was superior or higher than the people at the hearing. This line of questioning was halted, as it was not relevant.

Mr. Curtain called John Richard Pollock who was sworn. Mr. Pollock stated that Transport Canada employed him as superintendent of investigations in Edmonton Alberta.

Exhibit M-24 : Mr. Pollock referred to his notes indicating a conversation between himself and Mr. Gordon on May 27, 2003. He indicated that he explained the situation on the two charges to Mr. Gordon. Mr. Gordon stated that he would send in the required documentation to Transport Canada within a ten-day time frame. Mr. Pollock stated that the letters did not arrive.

Mr. Pollock testified that he spoke to Constable Brad Shardlow, RCMP, Evansburg, Alberta on June 3, 2003. During that conversation Constable Shardlow agreed to obtain proof of citizenship for Mr. Gordon and serve the Notice of Assessment of Monetary Penalty on Mr. Gordon.

Exhibits M-25: Mr. Pollock stated he forwarded the Notice of Assessment of Monetary Penalty to Constable Bradley Shardlow of the Evansburg, Alberta RCMP detachment and these documents covering C-ICIP were personally served on Mr. Lee Gordon on January 13, 2004.

Cross-examination

Mr. Gordon stated that he did not purchase an aircraft but rather a flying machine and because it was hanging on a wall or in a box it was not subject to registration. Mr. Pollock disagreed in that the bill of sale contains registration lettering and thus the CARs apply.

Mr. Curtain called Constable Bradley James Shardlow who was sworn. Constable Shardlow stated that he was an RCMP officer stationed at Evansburg, Alberta.

Exhibits M-26 and M-27: Constable Shardlow stated that on January 13, 2004 he initiated a traffic stop on Mr. Lee Gordon. The purpose of this apprehension was to serve on Mr. Gordon the papers he had received from Transport Canada.

Constable Shardlow testified that Mr. Gordon refused to accept the documents because they were made out to Wallace Lee Gordon aka: Bruce Lee Gordon. Mr. Gordon produced a Manitoba birth certificate indicating his name was Wallace Lee Gordon. He was unable to produce his driver's licence and it showed on the police computer screen that it had in fact expired. Constable Shardlow agreed to follow Mr. Gordon home so he could find his driver's licence and when they arrived at the residence, Mr. Gordon accepted the documents, verified by the affidavit of service contained in Exhibit M-27.

There was extensive discussion as to whom Mr. Lee Gordon is. Is he Lee Gordon, Bruce Lee Gordon or Wallace Lee Gordon? Constable Shardlow testified that Mr. Gordon produced a Manitoba birth certificate that proved Mr. Gordon was a Canadian citizen.

Constable Shardlow stated that he received a second package for Mr. Gordon from the Transportation Appeal Tribunal of Canada in Ottawa and he tried on five different occasions to serve it on Mr. Gordon. He finally served it on Mr. Gordon at the Riverside Diner.

Cross-examination

Mr. Gordon asked Constable Shardlow how he could verify his home address from his driver's licence if he did not have one. The constable referred to his police computer from the patrol car to obtain the correct address. Constable Shardlow stated that he had not used coercion or intimidation to have Mr. Gordon accept service of the documents covering C-ICIP.

THE RESPONDENT — Lee Gordon

Mr. Gordon was sworn and stated that his name was capital W, A-L-L-A-C-E, capital L, E-E, semicolon, two empty spaces, then capital G, O-R-D-O-N.

Mr. Gordon stated that when an individual makes a purchase, the items are the property of the individual not the state. He indicated that he believed he was taking home some equipment that he would one day reconstruct and fly. He testified that he was not a pilot and had never made application to be included in the aviation act.

Mr. Gordon stated that even though he carried a Manitoba birth certificate he was not a Canadian citizen. He stated that he is a natural person with commoner status and thus his citizenry has been pulled adrift. Mr. Gordon stated that he wished to resolve the matter with Transport Canada but he has never applied for a contract with Transport Canada and does not believe he is breaking any rules.

Cross-examination

Mr. Curtain asked Mr. Gordon if he was in possession of the aircraft parts registered as C-IASW and C-ICIP. Mr. Gordon was extremely evasive in his answers but answered in the affirmative that he was in possession of C-IASW parts but he could not find the actual registration for C-ICIP.

Mr. Gordon acknowledged that he had received the Notices of Assessment of Monetary Penalty and Mr. Gordon admitted that he had received the documentation from Constable Shardlow.

As there was no further evidence the evidentiary record was closed.

FINAL ARGUMENTS

Mr. Curtain reviewed the evidence that had been presented by the Minister. He indicated that the Minister had entered all the elements of both cases.

The Minister has served all notices on Mr. Gordon, and here is documented testimony that Mr. Gordon purchased two registered aircraft from two different individuals. Mr. Curtain submitted a legal opinion that even an unassembled aircraft that has been issued a registration is subject to subsection 202.46(2) of the CARs.

Mr. Curtain stated that Mr. Gordon still refuses to comply with the law and the Minister has an obligation to proceed with the action spelled out in the legislation.

The Respondent, Mr. Gordon, disputed the fact that Mr. Curtain had the authority to proceed with the action the Minister had launched against Mr. Gordon. His rationale was the fact that Mr. Gordon had not given the Minister the authority to proceed with the action.

ANALYSIS

Subsections 202.46(1) and (2) of the CARs state:

202.46 (1) The Minister may request that the owner of an aircraft inform the Minister, in writing, of the location of the aircraft and whether or not the aircraft is serviceable.

(2) Where the Minister makes a request pursuant to subsection (1), the owner shall comply with the request by not later than seven days after receiving it.

The issue for consideration is, did Mr. Gordon have in his possession two Canadian registered aircraft, specifically C-ICIP and C-IASW?

Exhibit M-7 : A document titled Notification of Change of Owner(s) dated 01/03/15 transfers the Lazair registration C-IASW from Adam Hunt and Ruth Merkis-Hunt to Lee Gordon.

Exhibit M-11 : A bill of sale dated November 20, 1999 transfers a Skyseeker Mk III Serial 3-210 registration C-ICIP from Allen Seiersen to Lee Gordon.

The Minister through their normal record keeping and gathering of information started a process of trying to contact Mr. Lee Gordon. What developed was a series of false addresses, returned and refused registered mail and finally the RCMP having to stop Mr. Gordon on a highway and serving him the documents at his home and in a restaurant.

I am convinced through written evidence and credible testimony that Mr. Gordon received all the pertinent documentation that would enable Mr. Gordon to proceed with a credible defence.

Mr. Lee Gordon presents an interesting defence. His first position is that the Lee Gordon we are seeing at the hearing is not the Lee Gordon the Minister of Transport is after. He relates this to upper case, lower case spelling of his name, capitalization and the fact that the real Lee Gordon might be a corporation.

He further states that he is not a Canadian and that he has no contract with the Minister of Transport. The testimony of Constable Shardlow shows that the RCMP records show that Mr. Lee Gordon has a Manitoba birth certificate which proves he is a Canadian and subject to Canadian laws.

With Mr. Gordon under oath and being cross-examined by Mr. Curtain, he admits to having in his possession parts of the two aircraft.

I find that the person appearing at the hearing known as Lee Gordon is the Lee Gordon referred to in all the correspondence from the Minister of Transport. The entry of different first names, backward spelling and upper case/lower case lettering has no credibility and I reject it as credible evidence.

The second position taken by Mr. Gordon is the fact that he purchased parts and not a completed aircraft and should not be subject to the CARs.

Exhibit M-19 contains a legal opinion from Mr. Glenn Hector and he states that "The fact that the ultralight is still in kit form does not mean that it is not an aircraft, it only means that it is not serviceable per 202.46(1) and (3)." Mr. Gordon provided no conflicting or opposing opinions to the position and I agree with the opinion of Transport Canada's lawyer.

In conclusion I find that Mr. Lee Gordon presented a defence which was based on confusing his identity, denying his possession of the aircraft and superimposing his personal beliefs of non compliance with Canadian laws by stating he was not a Canadian citizen and held some special powers.

I find this not to be a credible defence.

DETERMINATION

The Minister has proven the elements of the offences relating to subsection 202.46(2) of the CARs. Mr. Lee Gordon, by his own testimony, substantiates the Minister's allegations and I uphold the Minister's decision to issue sanctions of $750.00 against Mr. Lee Gordon.

TATC File No. W-2379-37/MoT File No. SAP-5504-44798 $250.00
TATC File No W-2524-37/MoT File No. SAP-5504-46253 $500.00
Total $750.00

E. David Dover
Member Transportation
Appeal Tribunal of Canada