Decisions

TATC File No. A-3345-41
MoT File No. Z5504-057512

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

3098343 Nova Scotia Ltd., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, ss. 202.42(1), 602.26(a), 700.02(2)


Review Determination
Howard M. Bruce


Decision: February 1, 2008

Citation: 3098343 Nova Scotia Ltd. v. Canada (Minister of Transport), [2008] TATCE 6 (review)

Heard at Stellarton (New Glasgow), Nova Scotia, on October 22 and 23, 2007

Held: The Tribunal confirms the Minister's decisions with regard to counts 1 to 7 and 9. However, with respect to count 8, the Tribunal concludes that the Minister has not proven that the applicant has committed the offence and this charge is thus dismissed. The total amount of $46 250 is to be made payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.

I.          BACKGOUND

[1]               On March 12, 2007, the Minister of Transport assessed a monetary penalty of $50 000 against the applicant, 3098343 Nova Scotia Ltd., pursuant to section 7.7 of the Aeronautics Act, R.S.C. 1985, c. A-2 (Act). The notice reads as follows:

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):

. . .

1.     On or about August 19 and August 20, 2006, at or near Union Centre, Pictou County, Nova Scotia, you operated an Antonov AN-2 aircraft, Polish registration SP-TWA, to conduct aerial work involving the carriage on board of persons other than flight crew members, without holding an air operator certificate, thereby contravening subsection 700.02(2) of the Canadian Aviation Regulations.

Monetary Penalty Assessed: $5,000.00

2.     On or about August 25, August 26, and August 27, 2006, at or near Union Centre, Pictou County, Nova Scotia, you operated an Antonov AN‑2 aircraft, Polish registration SP‑TWA, to conduct aerial work involving the carriage on board of persons other than flight crew members, without holding an air operator certificate, thereby contravening subsection 700.02(2) of the Canadian Aviation Regulations.

Monetary Penalty Assessed: $5,000.00

3.     On or about September 2 and September 3, 2006, at or near Union Centre, Pictou County, Nova Scotia, you operated an Antonov AN-2 aircraft, Polish registration SP-TWA, to conduct aerial work involving the carriage on board of persons other than flight crew members, without holding an air operator certificate, thereby contravening subsection 700.02(2) of the Canadian Aviation Regulations.

Monetary Penalty Assessed: $5,000.00

4.        On or about September 9, 2006, at or near Union Centre, Pictou County, Nova Scotia, you operated an Antonov AN-2 aircraft, Polish registration SP-TWA, to conduct aerial work involving the carriage on board of persons other than flight crew members, without holding an air operator certificate, thereby contravening subsection 700.02(2) of the Canadian Aviation Regulations.

Monetary Penalty Assessed: $5,000.00

5.        On or about September 16 and September 17, 2006, at or near Union Centre, Pictou County, Nova Scotia, you operated an Antonov AN-2 aircraft, Polish registration SP‑TWA, to conduct aerial work involving the carriage on board of persons other than flight crew members, without holding an air operator certificate, thereby contravening subsection 700.02(2) of the Canadian Aviation Regulations.

Monetary Penalty Assessed: $5,000.00

6.        On or about September 22 and September 23, 2006, at or near Union Centre, Pictou County, Nova Scotia, you operated an Antonov AN-2 aircraft, Polish registration SP‑TWA, to conduct aerial work involving the carriage on board of persons other than flight crew members, without holding an air operator certificate, thereby contravening subsection 700.02(2) of the Canadian Aviation Regulations.

Monetary Penalty Assessed: $5,000.00

7.        On or about August 26, 2006, at approximately 14:50 hours Atlantic Daylight Time, at or near Union Centre, Pictou County, Nova Scotia, you operated in Canada an aircraft that is registered in a foreign state, specifically, an Antonov AN‑2 aircraft, Polish registration SP‑TWA, that has been present in Canada for a total of 90 days or more in the immediately preceding twelve‑month period, thereby contravening subsection 202.42(1) of the Canadian Aviation Regulations.

Monetary Penalty Assessed: $12,500.00

8.        On or about July 15, 2006, at or near Union Centre, Pictou County, Nova Scotia, you permitted parachute descents from an Antonov AN-2 aircraft, Polish registration SP‑TWA, in or into controlled airspace, thereby contravening subsection 602.26(a) of the Canadian Aviation Regulations.

Pursuant to the Aeronautics Act, subsection 8.4(2), you, as the operator of the aircraft, are being proceeded against in respect of this offence and are liable to the penalty provided as punishment therefore.

Monetary Penalty Assessed: $3,750.00

9.        On or about August 26, 2006, at approximately 14:50 hours Atlantic Daylight Time, at or near Union Centre, Pictou County, Nova Scotia, you permitted parachute descents from an Antonov AN‑2 aircraft, Polish registration SP-TWA, in or into controlled airspace, thereby contravening subsection 602.26(a) of the Canadian Aviation Regulations.

Pursuant to the Aeronautics Act, subsection 8.4(2), you, as the operator of the aircraft, are being proceeded against in respect of this offence and are liable to the penalty provided as punishment therefore.

Monetary Penalty Assessed: $3,750.00

Total Monetary Penalty Assessed: $ 50,000.00

[2]               On April 10, 2007, the applicant filed a request for a review pursuant to section 7.91 of the Act.

II.        LAW

[3]               Sections 202.42(1), 602.26(a) and 700.02(2) of the Canadian Aviation Regulations, SOR/96-433 (CARs), provide the following:

202.42 (1) Subject to section 203.03, no person shall operate in Canada an aircraft that is registered in a foreign state that has been present in Canada for a total of 90 days or more in the immediately preceding twelve‑month period unless

(a)   the foreign state is a contracting state;

(b)   the operator of the aircraft is

(i)        the foreign state,

(ii)      an individual who is not a Canadian citizen or a permanent resident but is a citizen or subject of the foreign state, or

(iii)     an entity that is incorporated or otherwise formed under the laws of the foreign state; and

(c) if the operator of the aircraft is an entity described in subparagraph (b)(iii), the aircraft is operated in Canada

(i) in accordance with an air operator certificate, or

(ii) in any operation other than an operation that would require a private operator certificate if the aircraft were registered in Canada.

. . .

602.26 Except where permitted in accordance with section 603.37, no pilot-in-command of an aircraft shall permit, and no person shall conduct, a parachute descent from the aircraft

(a) in or into controlled airspace or an air route; or

. . .

700.02 (2) Subject to subsections (3) and (4), no person shall, unless the person holds and complies with the provisions of an air operator certificate that authorizes the person to do so, operate an aeroplane or helicopter to conduct aerial work involving

(a)    the carriage on board of persons other than flight crew members;

. . .

[4]    Sections 7.7(1), 7.91(1) and 8.4(2) of the Act read as follows:

7.7 (1) If the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister may decide to assess a monetary penalty in respect of the alleged contravention, in which case the Minister shall, by personal service or by registered or certified mail sent to the person at their latest known address, notify the person of his or her decision.

. . .

7.91 (1) A person who is served with or sent a notice under subsection 7.7(1) and who wishes to have the facts of the alleged contravention or the amount of the penalty reviewed shall, on or before the date specified in the notice or within any further time that the Tribunal on application may allow, file a written request for a review with the Tribunal at the address set out in the notice.

. . .

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

[5]               Sections 8 and 24 of the Canadian Charter of Rights and Freedoms, s. 33, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11  (Charter), read as follows:

8. Everyone has the right to be secure against unreasonable search or seizure.

. . .

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

III.      MINISTER'S EVIDENCE

A.        M.A. (Peggy) Plonka

[6]      The first witness, Inspector M.A. Peggy Plonka, was in charge of this case at Transport Canada. She has over 26 years of experience.

[7]               In July 2005, Transport Canada received a complaint from Robert Mowry, claiming that his former chief pilot, Bradley Wayne MacKay, was bringing in an Antonov AN‑2 aircraft, Polish registration SP‑TWA, (aircraft) into Canada. The Minister produced the following newspaper clippings: Kathleen Funke, "Rare biplane arrives in Trenton", The Evening News, New Glasgow, Nova Scotia, August 6, 2005; and Monica Graham, "Polish plane calls Pictou skydiving hangar home", Chronicle Herald, Halifax, Nova Scotia, August 15, 2005 (exhibit M‑2). These articles confirm the arrival of the aircraft at the Trenton Airport. They indicate that Mr. MacKay is the owner of the aircraft. Inspector Plonka testified that an Antonov AN‑2 aircraft cannot be certified in Canada.

[8]               During the investigation, Inspector Plonka contacted 4‑Air Airlines Sp. zo. o. (Ltd) (4‑Air Airlines) in Poland to enquire if they were aware that the aircraft had entered Canada under Polish registration and that they were still listed as the registered operators. It was during this conversation that the owner of 4‑Air Airlines, Waldemar Miszkurka, confirmed that the aircraft had been sold to the applicant. He had an agreement with Mr. MacKay that the aircraft could be operated under the Polish documentation in Canada, while Mr. MacKay was taking the necessary steps to get the aircraft registered in Canada. A copy of Inspector Plonka's telephone record was produced as evidence (exhibit M-3).

[9]               On August 6, 2005, Inspector Plonka visited the drop zone where she met Mr. MacKay. He indicated that he intended to have a full service skydiving operation and that the applicant had an agreement in place with West River Sky Sports Society Inc. (WRSSS). Following this meeting, Inspector Plonka conducted a corporate search of WRSSS in the Nova Scotia Registry of Joint Stock Companies (exhibit M‑4).

[10]           On September 22, 2005, Inspector Plonka received correspondence from Przymyslaw Mazan, Polish Civil Aviation Organization (PCAO), which confirmed that 4‑Air Airlines had advised him that the aircraft had been sold to Mr. MacKay of Nova Scotia, Canada. Mr. MacKay had confirmed to the Polish authorities that he was the owner of the aircraft, but that 4‑Air Airlines were the operators. Mr. Mazan also confirmed that, according to Polish laws and regulations, the certificate of registration had to be changed after the sale to the new owner (exhibit M‑5).

[11]           On September 23, 2005, Inspector Plonka wrote a letter to Mr. MacKay (exhibit M‑6), advising him that the PCAO had confirmed that 4‑Air Airlines were still registered as the owners and operators of the aircraft. Therefore, this contradicted his statement that the aircraft had been sold to him. If this was indeed the case, the sale of the aircraft would invalidate the Polish certificate of registration and any flight of the aircraft in Canada would be contrary to section 202.13(2) of the CARs.

[12]           On October 28, 2005, Inspector Plonka wrote to 4‑Air Airlines asking them to confirm who was the registered owner and operator of the aircraft and to provide information concerning their intentions with regard to operations in Canada (exhibit M-7).

[13]           Inspector Plonka contacted the Canada Border Services Agency and obtained a bill of sale indicating that the aircraft had been sold to the applicant on July 4, 2005, for the amount of US $31 000 (exhibit M‑8). A second bill of sale was also found during the search of the aircraft, pursuant to the search warrant, providing that the aircraft had been sold to the applicant for US $47 500 (exhibit M‑8).

[14]           On November 8 and 10, 2005, Inspector Plonka exchanged emails with Alison Boucher, the Chief of Aircraft Registration and Leasing at Transport Canada, which led to the PCAO cancelling the registration for the aircraft in Poland, as it had been sold to the applicant (exhibit M-9).

[15]           On November 10, 2005, Paul R. Bennett, the Regional Manager of Aviation Enforcement, Atlantic Region, Transport Canada, wrote to Mr. MacKay, confirming that Transport Canada had been advised by the PCAO that the certificate of registration for the aircraft had been cancelled. He confirmed that any flight made by the aircraft in Canada would henceforth be contrary to the CARs (exhibit M‑10).

[16]           On November 14, 2005, Wayne T. Pert, Regional Manager of General Aviation, Atlantic Region, Transport Canada, wrote to Mr. MacKay indicating that the PCAO required the return of the certificate of registration forthwith. In this same letter, Mr. MacKay was once again reminded that he was prohibited from flying the aircraft in Canada without a valid certificate of registration (exhibit M-11).

[17]           During Inspector Plonka's testimony, the decision from the PCAO crossing the aircraft off its registry was produced (exhibit M‑12).

[18]           On March 21, 2006, Inspector Plonka received an email update from the PCAO, informing her that the owner of 4‑Air Airlines had applied to register the aircraft while specifying that he also held a power of attorney from Mr. MacKay. The email also stated that 4‑Air Airlines were set to be the operators of the aircraft in order to provide the applicant the aircraft for operations in Canada (exhibit M‑13).

[19]           On May 15, 2006, Inspector Plonka received another email from the PCAO, informing her that the aircraft had been registered to 3098343 Nova Scotia Ltd. which did not have a Polish air operator certificate (AOC) (exhibit M‑14).

[20]           On May 21, 2006, Inspector Plonka met with Mr. MacKay at his place of business. During this meeting, he confirmed that 3098343 Nova Scotia Ltd. was the operator of the aircraft. After receiving a Charter caution from Inspector Plonka, Mr. MacKay did not answer any more questions. However, he specified that WRSSS was a non‑profit organization and did not operate a commercial air service.

[21]           On June 1, 2006, Inspector Plonka wrote to Harold O'Reilly, Shift Manager – QM ACC, confirming that the drop zone used by WRSSS for its skydiving activities was under class E controlled airspace and that such activity required prior coordination with air traffic control (ATC) (exhibit M‑15).

[22]           Pursuant to the meeting of May 21, 2006, Mr. Bennett from Transport Canada wrote to Mr. MacKay, indicating that Transport Canada considered that any flights by the aircraft in Canada, since the issue of the Polish certificate of registration, had to be in compliance with section 202.42 of the CARs (exhibit M‑16). In fact, the letter specifies that Transport Canada was of the opinion that operation of the aircraft in providing a service to WRSSS constituted aerial work involving the carrying on board of persons other than flight crew members, which required the applicant to hold an AOC.

[23]           On June 22, 2006, Inspector Plonka received a statutory declaration from the applicant and WRSSS, as well as copy of an agreement for the use of the aircraft, confirming that the owner of the aircraft was 3098343 Nova Scotia Ltd. and that it had granted exclusive use of the aircraft to WRSSS. This declaration was also accompanied by excerpts from the Nova Scotia Registry of Joint Stock Companies for the entities (exhibit M-17).

[24]           On July 25, 2006, Inspector Plonka sent a letter to 3098343 Nova Scotia Ltd. advising that it was in contravention of section 202.42(1) of the CARs and that any flights conducted after July 25, 2006 would be contrary to the CARs (exhibit M‑18).

[25]           On July 25, 2006, Mr. MacKay sent an email to Inspector Plonka providing Polish documentation. He believed this confirmed that 3098343 Nova Scotia Ltd. had satisfied the requirements of section 202.42(1)(b)(iii) of the CARs (exhibit M‑19).

[26]           On July 27, 2006, in response to a question from Inspector Plonka, Mr. Mazan confirmed that 3098343 Nova Scotia Ltd. was a foreign entity registered as such in the Polish registry (exhibit M‑20).

[27]           On July 27, 2006, Inspector Plonka sent a letter to the applicant in response to the email to Mr. Bennett on July 26, 2006. It confirms that the applicant is not a Polish entity and that as such, Transport Canada considers that the applicant is not an entity incorporated or otherwise formed under the laws of a foreign state (exhibit M-21). Thus, any flights conducted by the aircraft in Canada after July 25, 2006 would be in violation of section 202.42(1) of the CARs.

[28]           On July 27, 2006, Nav Canada received a NOTAM regarding paradrops from a 2 NM radius of the Trenton Airport (exhibit M-22).

[29]           On August 26, 2006, Inspector Plonka and Jim Power, Transport Canada, arrived near the site where the applicant conducted its operations and where the aircraft was present. At approximately 2:31 p.m., Inspector Plonka witnessed the aircraft take off towards Trenton and rise into controlled airspace. She saw five skydivers drop out of the aircraft. The aircraft then proceeded to land at 2:59 p.m. Inspector Plonka testified that she immediately called the Trenton Airport to verify if the drops she had just witnessed had been coordinated with them. She was informed that they had not. To complete Inspector Plonka's testimony, her handwritten notes taken on August 26, 2006, were produced as evidence (exhibit M‑23). Her testimony was also corroborated by the testimony of Mr. Power.

[30]           On September 15, 2006, Inspector Plonka sent a letter to the applicant, stating that Transport Canada was investigating possible contraventions of the CARs, in particular sections 202.42(1) and 602.26(a). The applicant was requested to voluntarily submit the name and licence of the pilot‑in‑command of the aircraft, Polish registration SP-TWA, as well as copies of the journey log title page for the aircraft and the pages for all flights made since July 22, 2006 (exhibit M-24).

[31]           Inspector Plonka testified that on October 6, 2006, she had a telephone conversation with Brian O'Malley who indicated that he was no longer chairman of WRSSS. He confirmed that WRSSS was paying the applicant for use of the aircraft. In this regard, Inspector Plonka's handwritten notes were produced as evidence (exhibit M-25).

[32]           On October 26, 2006, Inspector Plonka sent a letter to the applicant, stating that she was investigating possible violations of sections 202.42(1) and 602.26(a) of the CARs, giving details of the alleged contraventions and asking Mr. MacKay to contact her (exhibit M-26).

[33]           On November 16, 2006, Mr. MacKay sent an email to Mr. Pert, Transport Canada, in which he confirmed that the applicant filed a NOTAM with the Halifax Flight Information Centre (FIC) in May 2006, at the beginning of its season (exhibit M-27).

[34]           During Inspector Plonka's testimony, excerpts and videos collected on the following web sites were produced as evidence:

[35]           The applicant raised an objection as to the admissibility of these exhibits. The evidence was taken under advisement by the Tribunal which will determine its admissibility later in this determination.

[36]           Inspector Plonka testified that a search warrant was executed on December 14, 2006. The following documents were seized during the search and produced as evidence:

·        six invoices (079851 to 079856) prepared by the applicant and billed to WRSSS for hours of rental of the aircraft, as well as other invoices billed to the applicant for various consulting and maintenance work (exhibit M-32);

·        thirty-five waivers of liability signed by various clients of WRSSS (exhibit M‑33); and

  • a copy of the aircraft's journey log (exhibit M-34).

[37]           The applicant objected to the admission into evidence of exhibits M‑32, M‑33 and M‑34 on the basis that they had been obtained in contravention of section 8 of the Charter and should be excluded under section 24(2). The Tribunal admitted these exhibits under advisement. Their admissibility will be determined later in this determination.

[38]           Finally, a copy of the Transport Canada's aviation enforcement short case report was produced as evidence (exhibit M-35) in the course of Inspector's Plonka's testimony.

B.        Glen Blatchford

[39]           The Minister called Glen Blatchford to testify as an expert witness. After having confirmed his qualifications as an expert in aircraft certification, the Tribunal allowed his testimony. Mr. Blatchford explained the application of section 700.02 of the CARs, and in particular, the notions of "aerial work", as defined in section 101.01(1) of the CARs, as well as "commercial air service" and "hire or reward", as defined in section 3(1) of the Act.

C.        Dave Rye

[40]           Dave Rye of Nav Canada is the Manager for the area control centre (ACC) operations at the Moncton Airport. He testified that the Moncton Airport provides control services for aircraft, including aircraft with special needs. An excerpt from the Moncton ACC Unit Operations Manual (January 13, 2006) was produced as evidence (exhibit M-36).

[41]           A letter from Transport Canada, dated November 22, 2006, to Mr. Rye requesting a confirmation of any agreement between Nav Canada and the applicant was produced as evidence (exhibit M‑37). Following this letter, Mr. Rye sent an email to Transport Canada, confirming that no agreement or communication had taken place with the applicant (exhibit M‑38).

[42]           Various memoranda from Mr. Rye to his staff, asking to be advised of any communication from the applicant, were produced as evidence (exhibit M-39).

D.        Jim Power

[43]           Mr. Power is a civil aviation safety inspector with Transport Canada. He testified that he was with Inspector Plonka on August 26, 2006, and that he saw the aircraft take off, drop skydivers and land.

IV.       APPLICANT'S EVIDENCE

A.        Lorne Amos

[44]           The applicant's first witness was Lorne Amos who testified as an expert in certification and enforcement. After having heard his credentials, the Tribunal accepted him as such. Mr. Amos was of the opinion that the search of the premises was invalid. However, during cross‑examination, he confirmed that it had been approximately 25 years since he had worked in the enforcement branch.

B.        Bradley Wayne MacKay

[45]           Mr. MacKay testified that WRSSS is a non-profit organization, which allows its members to skydive. A WRSSS advertising pamphlet was produced as evidence (exhibit A-2).

[46]           Mr. MacKay confirmed that WRSSS had an agreement with the applicant, guaranteeing that it was the exclusive user of the aircraft. He stated that a certificate allowing members to parachute in the drop zone had been issued. However, no such certificate was produced as evidence.

[47]           Mr. MacKay stated that the applicant did not need an AOC, as it was not charging the passengers and skydivers for its services. He stated that the NOTAM sent on July 27, 2006 (exhibit M-22) was sufficient to fulfill the requirements of the exemption provided for in section 602.26 of the CARs. On this matter, Mr. MacKay testified that Rob Hammond, a controller at the Moncton centre, assured him that the NOTAM was a sufficient notification. However, Mr. Hammond was not called upon to testify.

[48]           Prior to his cross-examination, Mr. MacKay raised the objection that he could not be questioned, citing the principle that an accused cannot be called upon to testify. The Tribunal ruled that since Mr. MacKay had chosen to testify during the applicant's evidence, he could be cross‑examined on the subjects of the testimony.

[49]           During cross‑examination, Mr. MacKay could not confirm that the aircraft had not flown after July 25, 2006. However, he confirmed that WRSSS paid the applicant for the use of the aircraft and that the initials "BM" and the name "Brad" on the invoices were his own (exhibit M‑32).

V.        VALIDITY OF SEARCH WARRANT

[50]           The applicant argues that the search warrant was illegally executed on December 14, 2006, and as such, all evidence seized pursuant to this search should be excluded in accordance with sections 8 and 24(2) of the Charter.

[51]           On December 12, 2006, the Provincial Court of Nova Scotia granted a search warrant authorizing the entrance, search and seizure of the following premises (exhibit M‑1):

1.        In the hangar, trailers, outbuildings, Antonov An-2 aircraft registered as SP-TWA, and the dwelling house of Bradley Wayne MacKay; and

2.        In the Mako holiday trailer parked on the drop zone, and being used by Brian O'Malley, a former director of West River Sky Sports Society and once identified as the Controller for 3098343 Nova Scotia Ltd.;

all located at 3828 Montreal Road, R.R. #2, Westville, Nova Scotia, B0K 2A0, hereinafter called the premises.

[52]           The search was executed on December 14, 2006. Upon arrival on the premises, Inspector Plonka was informed that while there was a dwelling at 3828 Montreal Road, R.R. #2, Westville, Nova Scotia, B0K 2A0, the other part of the premises was at 3836 Montreal Road. She testified that while the search was underway, she tried to obtain a new warrant, but was unable to do so.

A.        Applicant's Position

[53]           The applicant submits that, during the execution of the search warrant, the objects were seized pursuant to the execution of a search warrant which only mentioned civic address 3828 Montreal Road. The part of the property searched was actually civic address 3836 Montreal Road. The applicant produced a surveyor's plan of the premises and surrounding area (exhibit A‑1), which confirms these facts. Thus, the search and seizure of evidence at 3836 Montreal Road was contrary to section 8 of the Charter and all evidence derived therefrom should be excluded pursuant to section 24(2) of the Charter.

B.        Minister's Position

[54]           The Minister argues that the omission to mention the second civic address, 3836 Montreal Road, is purely technical and, as such, should not invalidate the search and seizure on the portion of the premises which is at 3836 Montreal Road.

[55]           In addition, the Minister argues that the Nova Scotia Registry of Joint Stock Companies (exhibit M-17) indicates that 3828 Montreal Road is the registered address for the applicant and shows the same address as the civic address for Mr. MacKay, its director and president.

C.        Exclusion of Evidence under Sections 8 and 24(2) of the Charter

[56]           The rules applicable in such a matter were well summarized in Canada (Minister of Transport) v. Fonger, [1988], appeal determination, CAT file no. C‑0064‑02, [1988] C.A.T.D. no. 51 (QL), at 4 and 5:

In determining whether a search warrant issued pursuant to Section 443 of the Criminal Code is invalid, the Tribunal should determine whether the Justice had some evidence upon which he could, acting judicially, be satisfied that reasonable grounds exist that:

(1)   an offence has or is being committed;

(2)   the objects to be searched for will afford evidence of that offence; and

(3)   the objects are located in the place to be searched.

If the Tribunal determines on the basis of the above test that the search warrant is valid, the evidence obtained pursuant thereto should be admitted in evidence.

If, however, the Tribunal determines that the search warrant is invalid, that does not necessarily mean that the evidence is inadmissible. The Tribunal must then determine whether the search conducted on an invalid search warrant is an unreasonable search and seizure contrary to Section 8 of the Charter. Section 8 of the Charter reads as follows:

8.   Everyone has the right to be secure against unreasonable search or seizure.

If the Tribunal determines that the search and seizure was an unreasonable search and seizure contrary to Section 8 of the Charter, the Tribunal must then decide whether the evidence obtained pursuant to the search should be excluded pursuant to Section 24(2) of the Charter. Section 24(2) reads as follows:

24(2)  Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings could bring the administration of justice into disrepute.

A decision to exclude or not to exclude evidence under Section 24(2) is a question of law. There are two requirements for the exclusion of evidence pursuant to Section 24(2):

(1)   that the evidence has been obtained in a manner that infringed or denied a right or freedom guaranteed by the rights guaranteed by the Charter; and

(2)   that the admission of the evidence could, having regard to all the circumstances, bring the administration of justice into disrepute.

The phrase "if it is established" in Section 24(2) places the burden of persuasion on the proponent, the standard of persuasion is on "a balance of probabilities". R. v. Louis Leon Turcotte Sask. C.A. File 2803.

If the first requirement is satisfied, to satisfy the second requirement, it must be established having regard to all the circumstances that the admission of the evidence could bring the administration of justice into disrepute. The guidelines to be used in determining whether the administration of justice could be brought into disrepute were summarized in "Canadian Charter of Rights and Freedoms": What To Do and What Not To Do (1984) 29 McGill L.J. 521 at 538 and are as follows:

1. If the admission of the evidence in some way affects the fairness of the trial, it should be excluded;

2. The nature and circumstances of the Charter violation having particular reference to whether the infringement was committed in good faith, was inadvertent or technical as opposed to deliberate and flagrant; and

3. The effect of the exclusion of the evidence on the repute of the system of Justice. One must determine whether the administration of Justice will be better served by the admission or exclusion of the evidence.

[57]           With respect to the description of the location, the rule is that a general warrant must be location-specific. This requirement was discussed in R. v. Melvin, [1993] N.S.J no. 543 at ¶ 31 (QL), which reviews the work of James A. Fontana, The Law of Search and Seizure in Canada, 3rd ed. (Toronto: Butterworths, 1992) at 58:

Vagueness in the description of premises would no doubt have as its consequence mistaken searches of wrong places or premises or innocent premises, with the resultant falling into disrepute of the search warrant process or consequences under the Charter of Rights, "To avoid search warrants becoming an instrument of abuse it has long been understood that if a search warrant ... fails to accurately describe the premises to be searched ... then it will be invalid." [Re McAvoy (1971), 12 C.R.N.S. 56 (N.W.T. Terr. Ct.)]. Some considerable degree of precision is therefore required in describing the place to be searched. The description must be itself clear and unambiguous, leaving no doubt in the mind of the person executing the search warrant that he is at the proper place.

If, for example, a justice should issue a search warrant that does not define or describe with any degree of particularity the premises to be searched, the warrant will be struck down as invalid, ...

Failure to specify the area to be searched with adequacy and precision is not a failure that could normally be overlooked. Fontana at the same page continues:

Accordingly, the description should be appropriate to the nature of the locus in question. A single-family dwelling may properly be described by its municipal address, including number, street, town or city and province. Where the dwelling is in an unorganized area the best description is a legal description by lot or part lot, concession, township, district and province. But a metes and bounds description is not necessary: Sleeth v. Hurlbert [(1896), 3 C.C.C. 197 (S.C.C.)]. Problems may nevertheless arise in a variety of ways: several dwellings may exist within the same building, such as in the case of a large house that has been converted into several apartments, or the dwelling may be one of hundreds in a high-rise apartment complex. It might also be a grouping of interdependent buildings such as a farm. In each case the informant has a duty to be as precise as possible in describing the premises. Apartments within a single building should be further designated by number if they have them, or, if not, then according to their location within the building.

And further at p. 59:

By no undue extension of the word "place" it can be said that if the described premises is a clearly defined tract of land, then all the buildings upon it will be subject to search as the land can then be said to be the owner's premises. It is absurd to think that a separate search warrant should be issued for each building on the same tract of land: Sleeth v. Hurlbert, supra.

[58]           The first question to be determined is whether the search conducted is a violation of section 8 of the Charter. The Tribunal agrees with the premise that the description should be clear and unambiguous with respect to the nature of the locus in question. In the present matter, the civic address for the applicant in the Nova Scotia Registry of Joint Stock Companies is indicated as 3828 Montreal Road, as is the address for Mr. MacKay (exhibit M‑17). This information that was submitted to the Nova Scotia Registry of Joint Stock Companies by the applicant is the source of reference for parties requiring information regarding the corporation. The Tribunal concludes that it was reasonable that the address in the search warrant was 3828 Montreal Road.

[59]           Notwithstanding the address in the search warrant, the Tribunal must determine if the location of the property to be searched was described adequately and precisely enough. As was stated in Melvin, cited above in ¶ [57], "Failure to specify the area to be searched with adequacy and precision is not a failure that could normally be overlooked".

[60]           In the present matter, the warrant is very specific as to what locations are to be searched, namely, the hangar, trailers, outbuildings and the Antonov AN‑2 aircraft (exhibit M‑1). The dwelling house and the Mako holiday trailer were not searched.

[61]           The decision Melvin, cited above in ¶ [57], mentions that an adequate designation of the building, receptacle, or place to be searched is required.

[62]           The following objects were seized and their admissibility must be determined:

·        six invoices (079851 to 079856) prepared by the applicant and billed to WRSSS for hours of rental of the aircraft, as well as other invoices billed to the applicant for various consulting and maintenance work (exhibit M-32);

·        thirty-five waivers of liability signed by various clients of WRSSS (exhibit M‑33); and

  • a copy of the aircraft's journey log (exhibit M-34).

[63]           The Report to a Justice (exhibit M-1A) indicates that these documents were seized. Exhibits M-32 and M-33 were in the hangar's office and exhibit M‑34 was in the aircraft.

[64]           The Tribunal concludes that the location where these exhibits were seized was described in an adequate and precise manner. The term "hangar" is clear and unambiguous. As for the term "Antonov AN-2 aircraft registered as SP-TWA", there was little confusion as to which aircraft was subject to the search.

[65]           Having concluded that it was reasonable that the address indicated in the search warrant was 3828 Montreal Road and that the locus and description of what was to be the subject to the search warrant was specific and precise, the Tribunal concludes that there is no violation of section 8 of the Charter.

[66]           Further, had the Tribunal concluded that there had been a violation of section 8 of the Charter, the Tribunal comes to the conclusion that the evidence obtained as a result of the search would have been admissible.

[67]           As stated in Fonger, cited above in ¶ [56], the second requirement for the exclusion of evidence is that the admission of the evidence could, having regard to all the circumstances, bring the administration of justice into disrepute. Three questions must be asked:

(1)  Would the admission of the evidence in some way affect the fairness of the hearing?

[68]           The Tribunal concludes that the evidence seized does not affect the fairness of the hearing. The log book and the other documents seized are all emanating from the applicant in the normal course of its business.

(2) Was the infringement committed in good faith, inadvertent or technical as opposed to deliberate and flagrant?

[69]           The Tribunal agrees with the Minister that the fact that the civic address 3836 Montreal Road was omitted is a technical matter, which does not have as a consequence that the description of the locus to be searched was not precise or adequately described.

(3)  Would the administration of justice be better served by the admission or exclusion of the evidence?

[70]           In Melvin, cited above in ¶ [57], the Court refers to the Supreme Court of Canada decision R. v. Plant, [1993] 3. S.C.R. 281, in stating in ¶ 54 that: "The admission of real evidence does not normally tend to bring the administration of justice into disrepute". The evidence in the present matter is real evidence, namely documents emanating from the applicant in the normal course of its business. The administration of justice is better served by its admission.

[71]           Having taken all these factors into consideration, the Tribunal concludes that even if it had concluded that the omission of the inclusion of the civic address 3836 Montreal Road had as a consequence that the search which ensued was a violation of section 8 of the Charter, the evidence obtained would still have been admissible. Exhibits M‑32, M‑33 and M‑34 are thus admissible as evidence.

VI.       HEARSAY EVIDENCE

[72]           The applicant objects to the admissibility into evidence of the following exhibits, as they constitute hearsay evidence. The applicant was not able to cross‑examine witnesses or verify the authenticity of these exhibits.

[73]           Section 15 of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29, states the following:

15. (1) Subject to subsection (2), the Tribunal is not bound by any legal or technical rules of evidence in conducting any matter that comes before it, and all such matters shall be dealt with by it as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

[74]           In addition, section 4 of the Transportation Appeal Tribunal of Canada Rules, SOR/93‑346, states the following:

4. Where a procedural matter not provided for by the Act or by these Rules arises during the course of any proceeding, the Tribunal may take any action it considers necessary to enable it to settle the matter effectively, completely and fairly.

[75]           In determining the admissibility of evidence, the most important criterion is that of relevance. The evaluation of the probative value of the evidence will then determine the weight, if any, the Tribunal will give to the evidence, with respect to the whole of the evidence which is presented by both parties.

[76]           In the decision Université du Québec à Trois-Rivières v. Larocque, [1993] 1 S.C.R. 471, [1993] S.C.J. no. 23 (QL), the Supreme Court of Canada stated the principle that a tribunal should be prudent in matters of admissibility of evidence, as it is better to admit irrelevant evidence than to exclude evidence that would have been relevant.

[77]           With respect to hearsay evidence, the basic principle is stated in Canada (A.G) v. Mills, [1984] F.C.J. no. 917 (QL), which states:

Contrary to what was assumed by the Chief Umpire, Boards of Referees, like other administrative tribunals, are not bound by the strict rules of evidence applicable in criminal or civil courts; they may, therefore, receive and accept hearsay evidence.

[78]           This rule has been consistently applied by this Tribunal. A recent decision, Sierra Fox Inc. v. Canada (Minister of Transport), [2005], appeal decision, TATC file nos. O‑2988‑10, O-2997-41, [2005] C.T.A.T.D. no 9 (QL), states as follows:

22   The rule against the admittance of hearsay is a prime example of one of the legal and technical rules of evidence. The Tribunal is relieved of the legal and technical rules of evidence by the operation of section 15 of the Transportation Appeal Tribunal of Canada Act (TATC). Being relieved of the legal and technical rules of evidence does not mean that no rules apply. It has been recognized that the basic criterion for the admissibility of evidence in an administrative setting is relevance. (Reference omitted)

[79]           However, in the same decision, the Tribunal states the following:

43   We also find that accepting hearsay evidence as the sole source of evidence to uphold an alleged contravention would be contrary to the tenets of fairness and natural justice. Section 15 of the TATC Act specifically provides that matters shall be dealt with by the Tribunal as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

[80]           The Tribunal agrees that hearsay evidence may be admissible as corroborative evidence, but should not be the sole source of evidence produced to prove an alleged contravention.

[81]           In the present matter, the contested evidence is from three different web sites, including WRSSS. The Tribunal considers the evidence admissible solely as corroborative evidence and will weigh its probative value accordingly.

VII.     MINISTER'S CLOSING ARGUMENTS

A.        Counts 1 to 6

[82]           With respect to counts 1 to 6, contraventions of section 700.02(2) of the CARs, the Minister details the arguments in the following manner:

·        Section 700.02(2) of the CARs specifies that an AOC is required for any person doing aerial work.

·        Section 101.01(1) of the CARs defines "aerial work" as "a commercial air service other that an air transport service or a flight training service".

·        Section 3(1) of the Act defines "commercial air service" as "any use of aircraft for hire or reward" and "hire or reward" as "any payment, consideration, gratuity or benefit, directly or indirectly charged, demanded, received or collected by any person for use of an aircraft".

[83]           The Minister states that it was admitted by the applicant that it received payment from WRSSS for use of the aircraft and that this constitutes hire or reward creating a commercial air service, and thus aerial work necessitating an AOC.

[84]           For each count, the Minister details the evidence as follows:

·        Count 1 – Invoice 079851 (exhibit M‑32), dated August 21, 2006, indicating four hours of aircraft rental on August 19 and 20, 2006, as well as 12 waivers for these dates (exhibit M‑33) and a web video (exhibit M‑31).

·        Count 2 – Invoice 079852 (exhibit M-32), dated August 28, 2006, indicating 3.86 hours of aircraft rental on August 26 [sic], 26 and 27, 2006, and a web video (exhibit M‑31). There were two witnesses: Inspector Plonka and Mr. Power.

·        Count 3 – Invoice 079853 (exhibit M-32), dated September 4, 2006, indicating 2.26 hours of aircraft rental and a web video.

·        Count 4 – Invoice 079854 (exhibit M-32), dated September 9, 2006, indicating 2.07 hours of aircraft rental and a web video.

·        Count 5 – Invoice 079855 (exhibit M-32), dated September 17, 2006, indicating 5.72 hours of aircraft rental and web video.

·        Count 6 – Invoice 079856 (exhibit M-32), dated September 24, 2006, indicating 1.17 hours of aircraft rental and a web video.

B.        Count 7

[85]           With respect to count 7, the Minister refers to the statutory declaration made by the applicant (exhibit M‑17), in which the applicant admits that the aircraft was brought into Canada in 2005, as well as the letter to the applicant dated July 25, 2006 (exhibit M-18). According to the Minister, none of the exceptions at section 202.42(1) of the CARs applies to the applicant. The fact that the aircraft operated on August 26, 2006, was witnessed by Inspector Plonka and Mr. Power.

C.        Counts 8 and 9

[86]           These two counts are related to the alleged contraventions of section 602.26(a) of the CARs. With respect to count 8, the Minister states that the waivers (exhibit M‑33) and the web video (exhibit M‑31) are sufficient evidence. With respect to count 9, in addition to the web video (exhibit M‑31), there are two witnesses: Inspector Plonka and Mr. Power. They saw skydivers jump out of the aircraft on August 26, 2006.

VIII.    APPLICANT'S CLOSING ARGUMENTS

[87]           The applicant states that it is not necessary to hold an AOC in order to proceed with parachuting operations. He adds that the aircraft is in great shape and that it is not a threat to safety.

[88]           Mr. MacKay tried to get the aircraft certified, but was unable to do so, citing a "political problem" rather than a safety one.

[89]           According to the applicant, WRSSS should be the one charged in the present file as it charged the skydivers and was paid by them. The applicant was simply compensated for the use of the aircraft. This does not constitute a commercial operation.

[90]           With respect to count 8, the applicant points out that there are no witnesses and that the only evidence is a web video. In addition, when considering count 9, the applicant submits that there is no testimony indicating that Inspector Plonka was an expert in estimating aircraft altitude and thus could not confirm that they were in controlled airspace during the skydiving operations on August 26, 2006.

[91]           Finally, the applicant states that it submitted a NOTAM to Nav Canada and considered that this was sufficient.

[92]           In closing, the applicant argues that section 202.42 of the CARs is ultra vires, being contrary to the Charter. The Tribunal refused to hear this argument as the applicant had not given a prior notice in accordance with section 57(1) of the Federal Courts Act, R.S.C. 1985, c. F‑7, which reads as follows:

57. (1) If the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of a province, or of regulations made under such an Act, is in question before the Federal Court of Appeal or the Federal Court or a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, the Act or regulation shall not be judged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2).

(2) The notice must be served at least 10 days before the day on which the constitutional question is to be argued, unless the Federal Court of Appeal or the Federal Court or the federal board, commission or other tribunal, as the case may be, orders otherwise.

IX.       ANALYSIS

A.        Counts 1 to 6

[93]           In order to render a determination regarding counts 1 to 6, it is necessary to examine the legislation in question, and in particular the notion of "hire or reward".

[94]           The decision Canada (Minister of Transport) v. Tomassini, [2003], review determination, TATC file no. Q-2520-33, [2003] C.T.A.T.D. no. 38 (QL), states the following:

¶ 107   The question of hire or reward as defined is consistent with the purpose of the Aeronautics Act, namely, to protect the Canadian public during air transport. The Minister of Transport must be able to oversee all air service operations of a commercial nature to ensure the safety of passengers, and to this end does not need to determine the conduct in question, as the Saskatchewan Court of Appeal pointed out. The broad interpretation of section 700.02 of the CARs is also inferred from the fact that the Minister provides for only one exception, namely, that stipulated for the sharing of costs by a holder of a private pilot licence set out in section 401.28 of the CARs.

[95]           With respect to counts 1 to 6, contraventions of section 700.02(2) of the CARs, the Tribunal applies the following logic:

·        Section 700.02(2) of the CARs specifies that an AOC is required for any person doing aerial work.

·        Section 100.01(1) of the CARs defines "aerial work" as "a commercial air service other that an air transport service or a flight training service".

·        Section 3(1) of the Act defines "commercial air service" as "any use of aircraft for hire or reward" and "hire or reward "as "any payment, consideration, gratuity or benefit, directly or indirectly charged, received or collected by any person for use of an aircraft". Thus, if we arrive at the conclusion that the applicant was using the aircraft for "hire or reward", there would be a contravention of section 700.02(2).

[96]           It was admitted by the applicant, during the testimony of Mr. MacKay, that it received payment from WRSSS for the use of the aircraft. In fact, Mr. MacKay recognized the invoices made by the applicant to WRSSS, his initials and the name "Brad" on them. He confirmed that WRSSS paid the applicant for the use of the aircraft.

[97]           According to the applicant, only WRSSS was involved in a commercial operation where it received payment from the public. The applicant was not involved in a commercial operation. In fact, the Tribunal finds that both were involved in commercial operations.

[98]           The Tribunal refers to the decision Billings Family Enterprises Ltd. v. Canada (Minister of Transport), [2006], appeal decision, TATC file no. P-3114-41, [2006] C.T.A.T.D. no. 70 (QL), which deals with a similar argument:

38    It is our decision that the offence of operating an ATS without an AOC was committed by BFEL, the registered owner of the aircraft, the legal entity that had custody and control of the aircraft. Challenger Inspections Ltd. (CIL), an operation that shares some of the same directors as BFEL, demanded and received payment for flights of the aircraft that were in the custody and control of BFEL. Although there was no agreement in evidence between the owner of the aircraft, BFEL, and CIL, there was a corporate relationship between the two entities.

39    Given BFEL had custody and control of the subject aircraft, it is incumbent upon them to ensure that the aircraft is operated in compliance with the CARs. CIL was charging for the flights carried out by BFEL aircraft. Although there is no direct proof that any of the funds flowed from CIL to BFEL for a direct benefit, to suggest that BFEL operated its aircraft and received no benefit is not believable. It is our decision that BFEL, the registered owner having custody and control of the subject aircraft, received indirect benefit for the operation of its aircraft.

[99]           In the present case, the existence of "hire or reward" is even clearer. There is an agreement for the use of the aircraft between the applicant and WRSSS, and there is direct evidence that funds flowed from WRSSS to the applicant. As was stated in Billings, the applicant has control and custody of the aircraft. It is incumbent upon the applicant to ensure that the aircraft is operated in compliance with the CARs. Also, one cannot ignore the close corporate relationship between the two entities. A corporate shell game cannot allow the applicant to do indirectly what the CARs prohibit directly.

[100]       The Tribunal thus concludes that the use of the aircraft by the applicant for the benefit of WRSSS would constitute hire or reward, and that the applicant was operating a commercial air service doing aerial work. Any such flights would require an AOC in accordance with section 700.02(2) of the CARs.

[101]       The next step is to assess the alleged contraventions in counts 1 to 6, and to determine if the Minister has proven that the alleged aerial work took place. The Tribunal makes the following findings.

[102]       Count 1 – Invoice 079851 from the applicant to WRSSS, dated August 21, 2006, indicates four hours of aircraft rental on August 19 and 20, 2006. This invoice was recognized by Mr. MacKay. It establishes to the satisfaction of the Tribunal that aerial work was conducted by the applicant on August 19 and 20, 2006. The 12 waivers are evaluated as corroborative evidence, as the signers were not present at the hearing. As for the web video, although it was admitted as evidence by the Tribunal, it is of little probative value. The Minister has proven on a balance of probabilities that the applicant has contravened section 700.02(2) of the CARs.

[103]       Count 2 – Invoice 079852 from the applicant to WRSSS, dated August 28, 2006, indicates 3.86 hours of aircraft rental on August 26 [sic], 26 and 27, 2006. This invoice was recognized by Mr. MacKay. It establishes to the satisfaction of the Tribunal that aerial work was conducted by the applicant on August 25, 26 and 27, 2006. In addition, Inspector Plonka and Mr. Power saw the aircraft operate and drop skydivers. As for the web video, although it was admitted as evidence by the Tribunal, it is of little probative value. The Minister has proven on a balance of probabilities that the applicant has contravened section 700.02(2) of the CARs.

[104]       Count 3 – Invoice 079853 from the applicant to WRSSS, dated September 4, 2006, indicates 2.26 hours of aircraft rental. This invoice was recognized by Mr. MacKay. It establishes to the satisfaction of the Tribunal that aerial work was conducted by the applicant on September 2 and 3, 2006. As for the web video, although it was admitted as evidence by the Tribunal, it is of little probative value. The Minister has proven on a balance of probabilities that the applicant has contravened section 700.02(2) of the CARs.

[105]       Count 4 – Invoice 079854 from the applicant to WRSSS, dated September 9, 2006, indicates 2.07 hours of aircraft rental. This invoice was recognized by Mr. MacKay. It establishes to the satisfaction of the Tribunal that aerial work was conducted by the applicant on September 9, 2006. As for the web video, although it was admitted as evidence by the Tribunal, it is of little probative value. The Minister has proven on a balance of probabilities that the applicant has contravened section 700.02(2) of the CARs.

[106]       Count 5 – Invoice 079855 from the applicant to WRSSS, dated September 17, 2006, indicates 5.72 hours of aircraft rental. This invoice was recognized by Mr. MacKay. It establishes to the satisfaction of the Tribunal that aerial work was conducted by the applicant on September 16 and 17, 2006. As for the web video, although it was admitted as evidence by the Tribunal, it is of little probative value. The Minister has proven on a balance of probabilities that the applicant has contravened section 700.02(2) of the CARs.

[107]       Count 6 – Invoice 079856 from the applicant to WRSSS, dated September 24, 2006, indicates 1.17 hours of aircraft rental. This invoice was recognized by Mr. MacKay. It establishes to the satisfaction of the Tribunal that aerial work was conducted by the applicant on September 22 and 23, 2006. As for the web video, although it was admitted as evidence by the Tribunal, it is of little probative value. The Minister has proven on a balance of probabilities that the applicant has contravened section 700.02(2) of the CARs.

B.        Count 7

[108]       With respect to count 7, being the contravention of section 202.42(1) of the CARs, the evidence clearly indicates that, as of August 26, 2006, no AOC had been issued for the aircraft. Inspector Plonka and Mr. Power witnessed the aircraft take flight. These facts are not disputed.

[109]       The Tribunal finds that none of the exceptions in section 202.42(1) of the CARs are present in this case, and thus concludes that the Minister has proven on a balance of probabilities that the applicant has contravened section 202.42(1) of the CARs by operating the aircraft on August 26, 2006.

C.        Counts 8 and 9

[110]       Counts 8 and 9 relate to section 602.26(a) of the CARs.

[111]       In the matter of count 8, the Minister has provided as evidence the waivers and a web video. The Tribunal considers these two pieces of evidence to be hearsay evidence. The principles stated in Sierra Fox Inc., cited above in ¶ [78], provides that hearsay evidence should not be the sole source of evidence produced to prove an alleged contravention. With respect to count 8, the Tribunal finds that the Minister has not proven on a balance of probabilities that the applicant has contravened section 602.26(a) of the CARs.

[112]       However, count 9 is significantly different. Inspector Plonka and Mr. Power witnessed the flight and jumps on August 26, 2006. The Tribunal accepts that both witnesses were able to evaluate whether the aircraft entered controlled airspace on that day. In addition, Inspector Plonka testified that she immediately called the Trenton Airport to confirm that the applicant had not given any prior notification.

[113]       The fact that a NOTAM was sent to the Trenton Airport on July 27, 2006, is not sufficient to constitute prior coordination with the ATC providing control service in the airspace. Such coordination is necessary to meet the requirements of the exception to sections 602.26(a) and 603.37 of the CARs. With respect to count 9, the Minister has proven on a balance of probabilities that the applicant has contravened section 602.26(a) of the CARs.

X.        SANCTION

[114]       With respect to counts 1 to 6, the Tribunal considers that the operation of an air traffic service without a licence is a serious offence. The issuance of an AOC is a fundamental procedure imposed by the Minister to ensure that the operation of a commercial aircraft is carried out in a manner that is safe for the travelling public. In the present matter, Transport Canada had numerous communications with the applicant and had given fair warning that the operation of the aircraft in Canada without an AOC would be considered as an offence. The applicant continued its operations despite such missives. There is no reason to interfere with the Minister's original penalty assessment of $5 000 per occurrence for a total amount of $30 000.

[115]       The same principle applies to count 7, the contravention of section 202.42(1) of the CARs, and count 9, the contravention of section 602.26(a) of the CARs. In both these matters, the applicant received prior notice from Transport Canada as to the illegality of its activities. Thus, there is no reason to interfere with the Minister's original penalty assessment of 12 500 $ for count 7, and 3 750 $ for count 9.

XI.       DETERMINATION

[116]       The Tribunal confirms the Minister's decisions with regard to counts 1 to 7 and 9 and the penalties, as follows:

·        counts 1 to 6 – $5 000 for each count, for a total of $30 000;

  • count 7 – $12 500; and
  • count 9 – $3 750.

With respect to count 8, the Tribunal finds that the Minister has not proven that the applicant has committed the offence and this charge is thus dismissed.

February 1, 2008

Howard Bruce

Member