Decisions

TATC File No. W-3286-33
MoT File No. SAP-5504-54885 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Raymond Jerry Lee, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, s. 401.03(1)(a), 605.95(1), 703.106(3)


Review Determination
James E. Foran


Decision: February 12, 2008

Citation: Lee v. Canada (Minister of Transport), 2008 TATCE 7 (review)

Before: James E. Foran, Member

Heard at Yellowknife, Northwest Territories, on November 20, 21 and December 12, 2007

Held: I confirm the Minister's decision to assess a monetary penalty against the applicant, Raymond Jerry Lee, but reduce the total penalty from $1 200 to $300, as follows:

  • Offence 2 – The penalty is reduced from $1 000 to $100.
  • Offence 4 – The penalty of $100 is confirmed.
  • Offence 5 – The penalty of $100 is confirmed.

The total monetary penalty of $300 is to be made payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within 35 days of service of this determination.

I. INTRODUCTION

[1] Under notice of assessment dated July 5, 2005, the Minister of Transport assessed monetary penalties against the applicant, Raymond Jerry Lee, pursuant to section 7.7 of the Aeronautics Act, R.S.C. 1985, c. A‑2 (Act), on the following grounds and in the following amounts:

. . .

OFFENCE #2 – CARs 401.03(1)(a)

On or about the 10th day of July 2004, at approximately 10:50 a.m., at or near Yellowknife, Northwest Territories, while exercising the privileges of a flight crew licence, you did fail to produce the said licence while exercising the privileges of the said flight crew licence, thereby contravening subsection 401.03(1)(a) of the Canadian Aviation Regulations.

MONETARY PENALTY - $1,000.00

. . .

OFFENCE #4 – CARs 605.95(1)

On or about the 10th day of July 2004, at approximately 10:50 a.m., at or near Yellowknife, Northwest Territories, you conducted a take-off in an aircraft when the journey log was not on board the aircraft, thereby contravening subsection 605.95(1) of the Canadian Aviation Regulations.

MONETARY PENALTY - $100.00

OFFENCE #5 – CARs 703.106(3)

On or about the 10th day of July 2004, at approximately 10:50 a.m., at or near Yellowknife, Northwest Territories, you being a person who had been provided with a copy of the appropriate parts of a company operations manual by an air operator, did fail to ensure that the appropriate parts of the said manual were accessible when you were performing your assigned duties, thereby contravening subsection 703.106(3) of the Canadian Aviation Regulations.

MONETARY PENALTY - $100.00

[2] On July 10, 2004, at approximately 10:15 a.m., the applicant departed from the back bay area of Yellowknife, Northwest Territories, in a Cessna 185 aircraft to pick up two passengers and some equipment at or near Jennejohn Lake, a short distance away. The registered owner of the Cessna aircraft was 3584674 Canada Inc., carrying on business as Arctic Air. The applicant was an owner/manager as well as the operations manager, chief pilot and maintenance coordinator of Arctic Air (exhibit M‑4 – Operations Manual of Arctic Air). When the applicant returned to the back bay area at approximately 10:55 a.m., a Transport Canada inspector was waiting to perform an inspection of the aircraft (ramp inspection). During the course of that inspection, the inspector asked the applicant to produce various documents including his pilot's licence and medical certificate as well as the aircraft's journey log and operations manual. These documents were not on board the aircraft; they were kept at the offices of Arctic Air and were later produced by the applicant at that site. There is no issue about the existence of these documents. The monetary penalties have been imposed by the Minister because they were not on board the aircraft.

[3] The applicant has requested a review of these monetary penalties by the Transportation Appeal Tribunal of Canada pursuant to section 7.91 of the Act.

II. LAW

[4] Sections 7.7(1) and 7.91(1) 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.

[5] Sections 401.03(1)(a), 605.95 and 703.106 of the Canadian Aviation Regulations, SOR/96‑433 (CARs), read as follows:

401.03(1) No person shall act as a flight crew member or exercise the privileges of a flight crew permit, licence or rating or a foreign licence validation certificate 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 those privileges, the appropriate permit, licence or rating and a valid and appropriate medical certificate; or

. . .

605.95 (1) Subject to subsection (2), no person shall conduct a take-off in an aircraft unless the journey log is on board the aircraft.

(2) A person may conduct a take-off in an aircraft without carrying the journey log on board where

(a) it is not planned that the aircraft will land and shut down at any location other than the point of departure; or

(b) the aircraft is a balloon and the journey log is immediately available to the pilot-in-command

(i) prior to commencing a flight, and

(ii) on completion of the flight.

. . .

703.106 (1) Subject to subsection (2), an air operator shall provide a copy of the appropriate parts of its company operations manual, including any amendments to those parts, to each of its crew members and to its ground operations and maintenance personnel.

(2) An air operator may place a copy of the appropriate parts of its company operations manual in each aircraft that it operates, instead of providing a copy to each crew member, if the air operator has established in its company operations manual procedures for amending that manual.

(3) Every person who has been provided with a copy of the appropriate parts of a company operations manual pursuant to subsection (1) shall keep it up to date with the amendments provided and shall ensure that the appropriate parts are accessible when the person is performing assigned duties.

III. EVIDENCE

A. Minister of Transport

(1) William Robert Hanson

[6] The first witness for the Minister was Inspector William Robert Hanson who testified with respect to the events that transpired on July 10, 2004 at the back bay area of Yellowknife. Inspector Hanson has been employed with Transport Canada for 24 years and has extensive experience as a civil aviation inspector. On the day in question, Inspector Hanson was conducting routine checks of aircraft arriving at and departing from the back bay area and the east bay area of Yellowknife. He indicated that he was performing checks known as "ramp inspections" for aircraft arriving at or leaving from these areas.

[7] Inspector Hanson saw a Cessna 185 approaching the back bay and was present when the aircraft landed and taxied to the dock. Two passengers, one of them carrying a large dog, disembarked from the aircraft and Inspector Hanson noticed that there was unsecured camping equipment in the aircraft. After the passengers had disembarked, Inspector Hanson called aside the pilot, who was later introduced to him as Raymond Jerry Lee (the applicant), and explained that there was a problem with the unsecured load. Inspector Hanson asked the applicant for his pilot's licence and medical certificate and requested certain other documents including the aircraft's journey log and operations manual. Mr. Lee advised Inspector Hanson that these documents were not on board the aircraft but were located in the trailer office of Arctic Air a short distance away.

[8] Inspector Hanson then advised the applicant that the failure to carry this documentation on board the aircraft would prevent third parties from ascertaining who had been on the aircraft in the event of a mishap. The applicant responded that he utilized the charter bill to record the names of his passengers. He showed the bill to Inspector Hanson at the office and also produced his pilot's licence, the aircraft's journey log and operations manual.

[9] During their discussion, Mr. Lee indicated that he had been told by a representative of Transport Canada that a journey log need not be carried on the aircraft if the trip was within an 18‑ or 20‑mile distance of the water base. He could not identify the source of this advice. Inspector Hanson testified that at the end of their discussion, Mr. Lee remained of the view that there was no requirement for a small operator such as Arctic Air to carry the requested documents on the aircraft.

[10] During his inspection of the Cessna aircraft, it appeared to Inspector Hanson that it required certain repairs or maintenance work. This was a matter of some controversy during the review hearing. However, no penalties were assessed with respect to the condition of the aircraft.

(2) Kevin John Shott

[11] The second witness for the Minister was Inspector Kevin John Shott who testified with respect to the enforcement aspects of this matter. In early September 2004, Inspector Shott received the detection notice prepared by Inspector Hanson (exhibit M‑2) for the purpose of conducting a further investigation. After a number of unsuccessful attempts to locate Mr. Lee, Inspector Shott was able to contact him and they conversed by telephone on March 15, 2005. Inspector Shott testified that the applicant had not complied with the obligation of a certificate holder to have current information on file so that he could be contacted without difficulty.

[12] Inspector Shott produced a Distributed Air Personnel Licensing System (DAPLS) search to confirm that the applicant held a valid pilot's licence (exhibit M‑3). After contacting the applicant, Inspector Shott obtained the operations manual of Arctic Air (exhibit M‑4) and the aircraft journey log (exhibit M‑5). The operations manual identifies Raymond Lee as an owner/manager and as the operations manager, chief pilot and maintenance coordinator of Arctic Air. Mr. Lee's senior positions led Inspector Shott to believe that the applicant should be fully aware of the company's operations.

[13] Inspector Shott referred to page 83 of the aircraft journey log and to the entries for July 10, 2004 entitled Jennejohn and Yellowknife, which showed the down time of the return trip at 10:55 a.m. Inspector Shott testified that this entry satisfied him that the applicant had conducted a flight in the subject aircraft that was consistent with Inspector Hanson's evidence. Inspector Shott also indicated that his investigations confirmed that the applicant held a valid pilot's licence which had not been produced when requested by Inspector Hanson because it was not physically located on the aircraft. He concluded that the failure of the applicant to have his licence, the journey log and the operations manual on board the aircraft constituted violations of the CARs for which monetary penalties were appropriate.

[14] Inspector Shott testified that "oral counselling", i.e. a reprimand, was not appropriate in this case. The applicant's failure to have a current address on file, his belief that the regulations did not or should not apply to him as a small operator and his argumentative demeanor resulted in Inspector Shott's recommendation to proceed with the issuance of monetary penalties in the amounts prescribed. Inspector Shott testified that this constituted middle ground between oral counselling and a recommendation that the aircraft documents be suspended. Inspector Shott indicated that the amounts of the monetary penalties were prescribed by the regional manager, not himself.

B. Applicant

[15] The applicant Raymond Jerry Lee was advised that he was entitled to give evidence but need not do so. Mr. Lee indicated that he would not give evidence with respect to this case.

IV. ARGUMENTS

A. Minister of Transport

(1) Licence Offence

[16] The Minister's representative submits that the applicant has not complied with section 401.03(1)(a) of the CARs in that he failed to have his pilot's licence on board the aircraft when he operated it from Jennejohn Lake to the back bay of Yellowknife on July 10, 2004.

[17] The Minister's representative submits that the exception in section 401.03(1)(a) of the CARs does not apply to this matter. It is the Minister's position that the proper interpretation of this provision is to require the licence to be in the aircraft when it is in operation, i.e. when the pilot is exercising the privileges of the licence. There are no relevant exceptions to this requirement. The Minister's representative also confirms that the pilot's licence and the flight crew licence referenced in the provision are synonymous.

(2) Journey Log Offence

[18] The Minister's representative submits that the journey log must be on board the aircraft at the time the take-off is conducted, pursuant to section 605.95(1) of the CARs.

[19] The Minister's representative submits that there was a take-off because Inspector Hanson was present when the aircraft landed; in other words, the aircraft could not have landed had it not taken off. He also submits that the exception in section 605.95(2)(a) of the CARs is not applicable based on the circumstances of this case and, even if it were, the onus would be on the applicant to adduce evidence that he falls within that exception. The Minister's representative submits that the flight was planned and that the exception does not apply.

(3) Operations Manual Offence

[20] The Minister's representative submits that the applicant failed to comply with section 703.106(3) of the CARs in that he failed to ensure that the operations manual was accessible when the applicant performed his assigned duties.

[21] The Minister's representative takes the position that the operations manual can only be accessible when the assigned duties are being performed if the manual (or appropriate parts thereof) is on board the aircraft. Presumably, the operations manual would not be accessible if it were required while the aircraft was landing, taking off or picking up passengers at or near Jennejohn Lake.

(4) Appropriateness of Sanctions

[22] The Minister's representative submits that the monetary penalties are reasonable and refers to the sanctions schedule for each of the three offences (exhibit M‑6). These schedules provide for a monetary penalty for a first offence by an individual of $1 000 for the failure to have the pilot's licence on board the aircraft (section 401.03 of the CARs), $100 for the failure to have the journey log on board the aircraft (section 605.95 of the CARs), and $100 for failing to have the operations manual on board the aircraft (section 703.106 of the CARs).

[23] The Minister's representative refers to the detection notice (exhibit M‑2) under the comments section where it is indicated that Mr. Lee displayed a very negative and non‑compliant attitude. He also refers to Inspector Shott's telephone discussion with Mr. Lee on March 15, 2005 and the impression formed by Inspector Shott that Mr. Lee did not believe the regulations applied to him as a small operator. Inspector Shott was accordingly of the view that a monetary penalty should be assessed in the circumstances and that the first offence penalties in the sanctions schedules (exhibit M-6) were appropriate.

B. Applicant

(1) Licence Offence, Journey Log Offence, and Operations Manual Offence

[24] Mr. Lee indicates that he was able to produce the documents requested even though they were not on board the aircraft. He submits that Inspector Hanson requested those documents after the aircraft had landed, i.e. while it was on the ground and not while it was in flight. Mr. Lee also submits that a small float aircraft such as his Cessna 185 is not conducive to the safekeeping of articles or documents such as those requested by Inspector Hanson, which are easily lost overboard and are difficult to reproduce.

[25] Mr. Lee believes that the intent of the CARs provisions is to ensure that an operator is qualified, not to induce infractions. He believes that some leeway should have been provided to him and that he had been previously advised that it was not necessary to carry documentation such as a journey log if flying within a short radius of the take-off location. Admittedly, Mr. Lee could not identify the source of that advice.

[26] Mr. Lee indicates that he has personally written the operations manual and knows it inside out. The flights were not far enough for him to be away from the manual for any period of time.

[27] In summary, Mr. Lee believes that these offences arise out of his adversarial encounter with Inspector Hanson and are not reasonable.

V. CONSIDERATION OF THE EVIDENCE AND ARGUMENTS

A. Licence Offence

[28] Section 401.03(1)(a) of the CARs requires that a person exercising the privileges of a flight crew licence be able to produce that licence and an appropriate medical certificate while exercising those privileges. The applicant was able to produce the appropriate licence but could only do so after the aircraft had landed, had been secured to the dock, the passengers had disembarked and the applicant (along with Inspector Hanson) had proceeded to the offices of Arctic Air for the purpose of retrieving that document. I do not believe this meets the obligation of producing the licence while exercising its privileges.

[29] The applicant had a licence. This is not in issue. What is in issue is the requirement to have the licence with him while operating the aircraft. I am of the view that the proper interpretation of the words, "while exercising those privileges" creates a requirement that the licence be carried in the aircraft at the time it is operated. This includes the take-off, the flight itself and the landing.

[30] In section 605.95(2)(b) of the CARs, a "pilot‑in‑command" of a balloon is entitled to produce the journey log prior to commencing a flight or on completion of a flight. This type of exception could have been included in section 401.03 to dispense with the requirement to carry the flight crew licence on board a small aircraft such as a Cessna 185 when conducting the type of operations carried on by the applicant. The absence of such an exception is indicative of the requirement to carry that licence on board irrespective of the type of aircraft being operated or the operations being conducted.

B. Journey Log Offence

[31] Section 605.95(1) of the CARs provides that no person shall conduct a take-off in an aircraft unless the journey log is on board the aircraft. This requirement is clear and unambiguous. The journey log was not on board the aircraft, it was at the offices of Arctic Air.

[32] Subsection (2) dispenses with this requirement where it is not planned that the aircraft will land and shut down at any location other than the point of departure. The Minister's representative took the position that the take-off by Mr. Lee was planned. He also indicated that as this provision constituted an exception to subsection (1) requiring the journey log to be on board the aircraft, the onus was on Mr. Lee to demonstrate that he came within the exception.

[33] I note that in Canada (Minister of Transport) v. Boklaschuk, [1990], appeal determination, CAT file no. C‑0141‑33, [1990] C.A.T.D. no. 65 (QL), the Civil Aviation Tribunal states that: "If Transport proves a breach of the rule, the onus shifts to the Respondent [Mr. Lee] to establish that he falls within one of the exceptions. It is not up to Transport to prove the exception".

[34] I am not satisfied that the exception applies in this case, based on my consideration of the evidence and the circumstances respecting that flight.

C. Operations Manual Offence

[35] The Minister's representative argues that the operations manual or the appropriate parts thereof had to be carried on the aircraft during the flight from Jennejohn Lake to Yellowknife on July 10, 2004. He submits that the manual must be accessible when the applicant is performing his assigned duties and not after the flight is completed. This includes the take-off, flight time, waiting time and return to base.

[36] The applicant takes the position that he made the operations manual available to the Inspector at the offices of Arctic Air, a short time after he returned to the back bay. As such, he says it was accessible. Moreover, Mr. Lee states that there were no safety issues involved as he personally prepared the manual, knew it inside out and was aware that it was physically located close by. This was simply an administrative issue. Nonetheless, there was a breach of the requirement.

D. Monetary Penalties

[37] During the course of the evidence adduced in this matter and again in final argument, I asked the Minister's representative to provide me with the rationale for a monetary penalty of $1 000 relating to the failure to have a pilot's licence on board the aircraft while the monetary penalty was only $100 for failure to have either the journey log or the operations manual on board. The Minister's representative was not able to assist me with respect to the rationale for the disparity of these penalties.

[38] I am cognizant of Inspector Hanson's comments to Mr. Lee regarding the importance of having appropriate documentation on board to provide ready access to the identity of passengers. It appears to me that this supports a higher penalty for failing to have the journey log on board than for failing to carry the pilot's licence. Therefore, I have not been persuaded that the penalty of $1 000 with respect to the pilot's licence is reasonable in the circumstances of this case. I believe it is more appropriate to assess a monetary penalty of $100 for each of the three offences.

VI. DETERMINATION

[39] I confirm the Minister's decision to assess a monetary penalty against the applicant, Raymond Jerry Lee, but reduce the total penalty from $1 200 to $300, as follows:

  • Offence 2 – The penalty is reduced from $1 000 to $100.
  • Offence 4 – The penalty of $100 is confirmed.
  • Offence 5– The penalty of $100 is confirmed.

February 12, 2008

James E. Foran

Member