Decisions

TATC File No. W-3219-37
MoT File No. SAP-5504-57861 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Jason Peter Edgcumbe, 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, 605.38(1), 605.84(1)(b), 605.97


Review Determination
Keith Edward Green


Decision: March 3, 2008

Citation: Edgcumbe v. Canada (Minister of Transport), 2008 TATCE 11 (review)

Heard at Edmonton, Alberta, on November 23, 2006

Held: The Minister has demonstrated on a balance of probabilities that Jason Peter Edgcumbe has contravened sections 605.38(1), 605.84(1)(b) and 605.97 of the Canadian Aviation Regulations. The Tribunal has decided to uphold the Minister's decision and increase the total monetary penalty to $2 500, as follows:

  • Offence 1 – The penalty is increased from $250 to $500.
  • Offence 2 – The penalty is increased from $1 000 to $1 500.
  • Offence 3 – The penalty is increased from $250 to $500.

The total monetary penalty of $2 500 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 September 30, 2005, the Minister of Transport assessed monetary penalties against the applicant, Jason Peter Edgcumbe, 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 #1 – CARs 605.38(1) Proceeding Vicariously by way of Section 8.4(2) of the Aeronautics Act

That you did, on or about the 4th day of October 2004, at or near Slave Lake, Alberta, operate an aircraft, to wit a PA 28, Canadian registration C-GVZJ, when it was not equipped with one ELT in accordance with the Table on ELT Requirements, more specifically, Item #1, thereby committing a violation of section 605.38(1) of the Canadian Aviation Regulations.

MONETARY PENALTY - $250.00

OFFENCE #2 – CARs 605.84(1)(b) Proceeding by way of Section 4(1) of the Aeronautics Act

That you did, on or about the 4th day of October 2004, at or near Slave Lake, Alberta, permit a take-off in an aircraft, to wit a PA-28, Canadian registration C-GVZJ, which was in your legal custody and control, when the said aircraft was not maintained in accordance with the requirements of an airworthiness directive issued by the Minister pursuant to section 593.02 of the Canadian Aviation Regulations, more specifically AD 98‑02‑08, thereby committing a violation of section 605.84(1)(b) of the Canadian Aviation Regulations.

MONETARY PENALTY - $1,000.00

OFFENCE #3 – CARs 605.97 Proceeding Vicariously by way of Section 8.4(2) of the Aeronautics Act

That you did, on or about the 27th day of May 2005, at or near Camrose, Alberta, being the owner of an aircraft, to wit a PA-28, Canadian registration C-GVZJ, who transferred title of the said aircraft to another person, namely Donald Hendrickson, you did at the time of the transfer, fail to deliver to that person, all the technical records that related to that aeronautical product, more specifically an aircraft journey log book, thereby committing a violation of section 605.97 of the Canadian Aviation Regulations.

MONETARY PENALTY - $250.00

TOTAL MONETARY PENALTY - $1,500.00

II. LAW

[2] Section 7.7(1) of the Act reads 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.

[3] Sections 605.38, 605.39(1)(c), 605.84(1)(b) and 605.97 of the Canadian Aviation Regulations, SOR/96‑433 (CARs), read as follows:

605.38 (1) Subject to subsection (3), no person shall operate an aircraft unless it is equipped with one or more ELTs in accordance with subsection (2).

(2) An aircraft set out in column I of an item of the table to this subsection shall, for the area of operation set out in column II of the item, be equipped with the quantity and type of ELTs referred to in column III of that item, which ELTs shall be armed, if so specified in the aircraft flight manual, aircraft operating manual, pilot operating handbook or equivalent document provided by the manufacturer.

Table - ELT Requirements

Item

Aircraft

Area of Operation

Minimum Equipment

1.

All aircraft except those referred to in subsection (3)

Over land

One ELT of Type AD, AF, AP, A or F

2.

Large multi-engined turbo‑jet aeroplanes engaged in an air transport service carrying passengers

Over water at a distance from land that requires the carriage of life rafts pursuant to Section 602.63

Two ELTs of Type W or S or one of each

3.

All aircraft that require an ELT other than those set out in item 2

Over water at a distance from land that requires the carriage of life rafts pursuant to Section 602.63

One ELT of Type W or S

(3) An aircraft referred to in subsection (1) may be operated without an ELT on board where the aircraft is

. . .

(d) operated by the holder of a flight training unit operating certificate, engaged in flight training and operated within 25 nautical miles of the aerodrome of departure;

. . .

605.39 (1) An aircraft that is required to be equipped with one or more ELTs under section 605.38 may be operated without a serviceable ELT if the operator

. . .

(c) displays on a readily visible placard within the aircraft cockpit, until the ELT is replaced, a notice stating that the ELT has been removed and setting out the date of removal.

. . .

605.84 (1) Subject to subsections (3) and (4), no person shall conduct a take-off or permit a take-off to be conducted in an aircraft that is in the legal custody and control of the person, other than an aircraft operated under a special certificate of airworthiness in the owner-maintenance or amateur-built classification, unless the aircraft

. . .

(b) meets the requirements of any airworthiness directives issued under section 593.02; and

. . .

605.97 Every owner of an aircraft who transfers title of an aircraft, airframe, engine, propeller or appliance to another person shall, at the time of transfer, also deliver to that person all of the technical records that relate to that aeronautical product.

III. PRELIMINARY MOTION

[4] The applicant, Mr. Edgcumbe, made a motion to dismiss offences 1 and 2 on the ground that the notice of assessment of monetary penalty was not delivered and received within the required time, being over one year from the date of the recorded alleged infraction (October 4, 2004), in accordance with section 26 of the Act, which reads as follows:

26. No proceedings under sections 7.6 to 8.2 or by way of summary conviction under this Act may be instituted after twelve months from the time when the subject-matter of the proceedings arose.

[5] Mr. Edgcumbe indicated that he had received the notice of assessment of monetary penalty on October 21, 2005 even though the issue date was September 30, 2005.

[6] The Minister was asked to explain the process and circumstances of delivery to Mr. Edgcumbe and why there appeared to be a disparity between the date on which the notice was initially issued (September 30, 2005) and the date on which Mr. Edgcumbe received it (October 21, 2005). The Minister explained that difficulties were encountered in the delivery of the notice to Mr. Edgcumbe and on October 3, 2005 the Camrose Police were contacted and instructed to deliver the notice to Mr. Edgcumbe, which was accomplished on October 21, 2005.

[7] I dismissed the motion on the basis that the delay was not unreasonable and that Mr. Edgcumbe was not deprived of any due process. The assessment of monetary penalty was issued within the prescribed time frame, that is, the 12‑month period prescribed within section 26 of the Act commencing with the date of the alleged infraction and concluding 12 months afterwards. It does not include time taken for delivery. The Minister was able to verify that all possible measures were taken to locate Mr. Edgcumbe as quickly as possible.

IV. EVIDENCE

A. Minister of Transport

[8] In the opening statement, the Minister explained the applicant's relationship to 1012154 Alberta Ltd. (belonging to Donald Edward Hendrickson) and 967247 Alberta Ltd. (belonging to Mr. Edgcumbe, being the sole shareholder and director), carrying on business as Edge Air, in Camrose, Alberta. Edge Air had leased aircraft C‑GVZJ from 1012154 Alberta Ltd. on November 25, 2003 for one year until November 25, 2004. The Minister explained that as of May 27, 2005, Mr. Edgcumbe had failed to return certain technical records belonging to the legal owner of the aircraft (Mr. Hendrickson's company) even though the lease agreement had expired almost six months previously.

(1) Mitch Paulhus

[9] The Minister called Inspector Mitch Paulhus, a civil aviation safety inspector, Aviation Enforcement, Transport Canada. He related the circumstances of the present case, explaining how the owner of aircraft C‑GVZJ made a formal complaint to Transport Canada. The complaint insinuated that Mr. Edgcumbe had not returned all of C-GVZJ technical records following the expiration of a lease agreement. Additionally, an emergency locator transmitter (ELT) had not been installed and the aircraft had apparently operated beyond the 25 nautical miles (NM) radius. Also, there was an outstanding airworthiness directive (AD 98‑02‑08; exhibit M‑1) at the time of the reported flight.

[10] The Minister filed a copy of a letter from Transport Canada, dated December 10, 2004, to 967247 Alberta Ltd., carrying on business as Edge Air, advising the lease agreement had expired and consequently the certificate of registration belonging to aircraft C‑GVZJ had been cancelled (exhibit M‑2), and a copy of the original lease agreement (exhibit M‑3). The Minister subsequently submitted copies of specific pages from the aircraft journey log book from December 11, 2003 to October 5, 2004 (exhibit M‑4).

[11] Having reviewed all of the available information to substantiate that the aircraft journey log book had not been returned to Mr. Hendrickson, Inspector Paulhus was also able to verify that AD 98-02-08 had not been accomplished. Subsequently, Inspector Paulhus provided Mr. Edgcumbe with a registered letter alleging failures to complete a mandatory AD and to return the applicable technical records to the rightful owner.

[12] With regard to the ELT, Inspector Paulhus explained that it was later in August 2005 when he established that aircraft C‑GVZJ had been operated beyond the permissible 25 NM range without an ELT. During a telephone conversation with Mr. Edgcumbe, the latter explained that he had provided a work order, dated September 13, 2004, to an aircraft maintenance engineer (AME), George Chivers, to complete all ADs (exhibit M‑5). When questioned over the ELT, Mr. Edgcumbe responded that it was a Transport Canada inspector, Gordon Cousins, who had informed him that it was permissible to fly beyond a 25 NM radius without an ELT installed. He also indicated that he had not seen the missing technical records since October 2004. Inspector Paulhus testified that he had emailed Inspector Cousins to ascertain the accuracy of the information provided to Mr. Edgcumbe (exhibit M‑6). Inspector Cousins could not remember whether such a conversation had taken place. He indicated, however, that if such a conversation had taken place, he would have referred to section 605.38(3)(d) of the CARs allowing Mr. Edgcumbe to operate without an ELT but only within a 25 NM radius of his aerodrome of departure (exhibit M‑18).

[13] Inspector Paulhus described a visit to the AME, Mr. Chivers, to discuss the AD issue. Mr. Chivers acknowledged that he had been given a work order from Mr. Edgcumbe pertaining to AD 98-02-08. He subsequently advised Mr. Edgcumbe that it would require a non‑destructive testing. Since Mr. Edgcumbe did not want the AD inspection completed, Mr. Chivers wrote that AD 98-02-08 was "not carried out [at] customer's request" in the maintenance release in the log book (exhibit M‑4). However, Mr. Edgcumbe indicated that he was not aware of such statement in the log book. Of interest is another item pertaining to the ELT immediately following this statement, which reads "ELT recertification not carried out ELT not installed".

[14] Inspector Paulhus next contacted the pilot of the aircraft, Darrel Rott, enquiring as to what he had done with the log book after the last flight. Mr. Rott told him that after he had filled it out he had placed it back inside the aircraft.

[15] The next step in the investigation was to establish that Mr. Edgcumbe was the person responsible for maintenance (PRM). In support of this, several documents were presented (exhibits M‑7, M‑8, M‑9 and M‑10) to demonstrate the relationship of Mr. Edgcumbe as PRM for 967247 Alberta Ltd., carrying on business as Edge Air.

[16] In cross-examination, Inspector Paulhus indicated that the AD was applicable to the engine installed in aircraft C‑GVZJ. He also indicated that he did not know whether corrosion pits were discovered on a previous inspection and that the AME, Mr. Chivers, would not know either as he did not perform the previous inspection.

[17] Mr. Edgcumbe informed Inspector Paulhus that at the time aircraft C‑GVZJ was brought into service, the engine received a 100‑hour inspection and AD 98‑02‑08 was accomplished by another AME in November 2003. Inspector Paulhus indicated that he did not know that the AD was completed at that time, as he was not provided with the documentation and that he trusted Mr. Chivers had done his research. Inspector Paulhus did not have access to all the technical records. However, he did research the Transport Canada database which lists aircraft and AD compliance. This particular AD was not listed as having been complied with.

[18] Inspector Paulhus explained that the PRM is the person who researches the technical records and history of an aircraft to ascertain, for example, whether an AD, such as AD 98‑02‑08, is applicable. Additionally, the PRM is the person who ensures that all outstanding maintenance, ADs, etc., have been accomplished and that applicable equipment is installed.

[19] Inspector Paulhus testified that he did not recall the sequence of events concerning the initial telephone conversation with Mr. Edgcumbe but believed that he provided Mr. Edgcumbe with a letter of warning advising him that he did not have to say anything. He did not recall if he had reiterated the warning during the telephone conversation.

[20] Inspector Paulhus referred to an entry made in the journey log book on July 22, 2004, "ELT removed for servicing". He indicated that there were no records stating that the ELT had been replaced and, therefore, the aircraft was restricted to fly within 25 NM from the main base.

[21] In re-examination, Inspector Paulhus indicated that he believed that the letter warning Mr. Edgcumbe of the situation was actually provided to him before the telephone conversation took place. Additionally, Inspector Paulhus testified that he thought it was about nine and a half months into the "statute year" that he had started his investigation.

(2) Gordon Cousins

[22] Inspector Gordon Cousins, a civil aviation inspector, Maintenance and Manufacturing, Transport Canada, explained how a person qualifies as a PRM and the significance of the letter to Mr. Edgcumbe informing him that he qualified as a PRM (exhibit M‑17). The PRM is responsible to research ADs and applicable service bulletins and to maintain a dispatch system for applicable maintenance requirements. Inspector Cousins explained the regulation pertaining to an ELT and what exemptions apply under section 605.39(1) of the CARs, of which he was sure were not applicable.

[23] In cross-examination, Inspector Cousins testified about the Transport Canada process for PRM qualification. He explained that he had audited Mr. Edgcumbe six months after he qualified as a PRM and found some deficiencies. In answer to a question as to the liability attached to the performance of a work order by an AME, Inspector Cousins indicated that it was Mr. Edgcumbe's responsibility to ensure that it was accomplished.

(3) George Chivers

[24] George Chivers, AME, confirmed that he had completed the maintenance as listed in the journey log book maintenance release (exhibit M‑4) on aircraft C‑GVZJ. Mr. Edgcumbe would normally assign work through a work order listing the assigned maintenance requirements. Edge Air's work order no. 21 (exhibit M‑5) was completed with the exception of two items: AD 98‑02‑08, which addressed corrosion within the engine, that is, the crankshaft, and the ELT recertification. Mr. Chivers explained that the AD was recurring and that it was due every 100 hours or annually, whichever occurred first, adding that he had "already done it once". Mr. Chivers testified that it was his policy to advise customers on expensive items and that, having done this, Mr. Edgcumbe informed him that he did not want the work accomplished. Subsequently, the AD inspection was not performed even though Mr. Chivers informed Mr. Edgcumbe that it was a statutory requirement.

[25] When asked when was the last time he had seen the aircraft journey log book, Mr. Chivers replied that he had seen the owner of aircraft C‑GVZJ provide it to Mr. Edgcumbe and that he thought it was still in Mr. Edgcumbe's possession.

[26] Concerning the ELT, Mr. Chivers stated that the aircraft did not have an ELT installed at the time of the inspection and that Mr. Edgcumbe would take care of it. Mr. Chivers verified that he had made an entry in the journey log book, stating that the ELT was not installed. Additionally, there was no placard applicable to the ELT not being installed.

[27] In cross-examination, when asked why the AD had not been completed, Mr. Chivers stated that when he had telephoned Mr. Edgcumbe and quoted the price for the inspection, Mr. Edgcumbe had indicated that he did not want it done because of the cost. According to Mr. Chivers, Mr. Edgcumbe was responsible for the major engine-related items on the aircraft. Mr. Chivers had noted the request in the aircraft journey log book as a precaution. When asked if he had made any attempt to notify anyone that the aircraft was flying without the AD having been accomplished, he replied that he had done "his duty".

[28] Concerning the journey log book, Mr. Chivers indicated that he saw the aircraft owner, Mr. Hendrickson, handing it back to Mr. Edgcumbe while they were having a discussion next to the aircraft.

(4) Darrel Rott

[29] Darrel Rott explained that on October 4 and 5, 2004, he had flown aircraft C‑GVZJ from Twin Island to High Level and several points in between, the furthest point being approximately 300 NM from his starting point. Mr. Rott verified that he had the aircraft journey log book with him at the time of the flights. He testified that he had not known of any deficiencies with the aircraft at the time he made the flights. Mr. Chivers had informed him of the crankshaft issue (as it pertains to the AD) before he had left and having been given the information, Mr. Rott did not consider it to be a safety issue. He stated that he did not know at the time he flew the aircraft that an ELT was also not installed.

[30] In cross-examination, Mr. Rott testified that he was not aware that at the time he flew the aircraft there was an AD against it.

(5) Donald Edward Hendrickson

[31] Mr. Hendrickson is the registered owner of aircraft C‑GVZJ. He indicated that he had leased the aircraft to Mr. Edgcumbe on November 24, 2003. He explained that the aircraft journey log book and a set of keys were missing. He had tried to contact Mr. Edgcumbe concerning their whereabouts to regain possession of them. He was not successful resulting in him contacting Transport Canada for their assistance.

[32] The Minister introduced a series of emails between Messrs. Hendrickson and Edgcumbe (exhibit M‑20). Mr. Hendrickson explained that the first email primarily was to establish what Mr. Edgcumbe's intention was regarding the aircraft. When asked whether he knew of a specific reason why the log book had not been returned to him, he responded that Mr. Edgcumbe had told him that if he was to provide a letter stating that everything was satisfactory to the lease, Mr. Edgcumbe would only then return the log book and the keys. Mr. Hendrickson did not know where the aircraft journey log book was. However, he remembered the last time he had seen it was during his inspection of the damage to his aircraft, around the middle of October 2004, when he had found the log book inside the aircraft. After examining the entries, it was apparent to Mr. Hendrickson that it had been on a short cross‑country excursion. Mr. Hendrickson stated that he had contacted Mr. Edgcumbe who arrived to view the damage and indicated he knew nothing of it. While both parties were examining the damage, Mr. Hendrickson had the log book with him. There was no entry in the log book describing any damage although it was flown by one of Mr. Edgcumbe's lessees (Mr. Rott). Mr. Edgcumbe noted that the last entry had also not been signed. At the end of this conversation, Mr. Hendrickson indicated that he had handed the log book over to Mr. Edgcumbe, which was the last time he saw it.

[33] In cross-examination, Mr. Hendrickson indicated that he first learned of the damage to his aircraft approximately a week to a week and a half after the recorded last flight. He also testified that he had given the log book to Mr. Edgcumbe so that the last entry could be completed. Mr. Hendrickson recalled that the log book was in the aircraft in a bag when he had first seen it.

B. Applicant

(1) Jason Peter Edgcumbe

[34] Mr. Edgcumbe stated that the last time he had seen the aircraft journey log book or had any type of control over it, was on the final flight prior to the last 100‑hour inspection on September 7, 2004. After the inspection, he did not have an opportunity to see the log book but Mr. Chivers faxed him a copy of the Edge Air work order no. 21. Written on it is the following maintenance statement: "carried out as per log book entries" (exhibit M‑5). Mr. Edgcumbe stated he had not received any information from Mr. Chivers that an entry had been written in the log book, indicating the AD had not been completed.

[35] Recalling Mr. Hendrickson's statement that all of the aircraft technical records, with the exception of the aircraft journey log book, were in his possession, Mr. Edgcumbe presented certain technical records pertaining to aircraft C‑GVZJ, challenging Mr. Hendrickson's statement. The Tribunal found these records to be authentic and admissible evidence and handed them back to Mr. Edgcumbe after review as they were original records. Mr. Edgcumbe explained that the purpose of presenting the technical records was to demonstrate that Mr. Hendrickson did not have all of them as he had stated. According to Mr. Edgcumbe, it was therefore feasible to assume that Mr. Hendrickson did not look after the technical records in an appropriate way, thereby suggesting that he did not know where the log book was because he might have misplaced it himself.

[36] Mr. Edgcumbe explained that the log book was seldom ever used for account billing of flights; instead, a daily flight record was kept. Additionally, had the log book been handed over to him, it would have happened several days after October 7, 2004, as the invoice was created without the journey log book. Mr. Edgcumbe repeated several times that he did not have it and that he did not know where it was and reiterated he was not given it.

[37] Mr. Edgcumbe stated that he had issued work order no. 21, requesting that the 100‑hour inspection and ADs be completed. The aircraft was delivered to Mr. Chivers' AMO for the inspection on September 7th and the maintenance release was completed on October 3, 2004, a time span of about three weeks. Due to the length of time taken to complete the inspection, Mr. Edgcumbe assumed that all work had been completed with no outstanding items.

[38] Mr. Edgcumbe explained that he had a telephone call from Mr. Chivers about AD 98‑02‑08 and that he was informed it would cost about $400. Subsequently, he asked Mr. Chivers to reschedule the work on the AD, which was before the date of the release on October 3rd (exhibit M‑4). They discussed who would pay for the AD and apparently Mr. Chivers suggested that he would talk to Mr. Hendrickson as the owner of the aircraft. Mr. Edgcumbe explained that he had only seen the work order and that since there was no notation indicating open items, he had assumed that the aircraft inspection was completed and the aircraft was ready to fly. Subsequently, he had authorized Mr. Rott to fly it. Additionally, nothing was said at the time Mr. Rott collected the aircraft. Mr. Edgcumbe explained that it is the owner's responsibility to ensure that all ADs are complied with, which is why Mr. Chivers suggested it be passed along to Mr. Hendrickson. Mr. Edgcumbe stated that without knowing the AD had not been completed, he had no way of preventing the chain of events. He did not dispute the AD was not completed.

[39] Mr. Edgcumbe explained that the AD stated that if corrosion was found, it had a recurring inspection requirement. However, there was no log entry stating that corrosion had been discovered. Mr. Edgcumbe researched the technical records including the engine log book and there were no entries indicating corrosion had been discovered, rendering in Mr. Edgcumbe's point of view, that AD 98‑02‑08 was not recurring. Mr. Edgcumbe asked that consideration be made that the Minister had failed to show the AD was a recurring requirement.

[40] The ELT was the next item addressed by Mr. Edgcumbe. He presented what he introduced as a work order but in reality turned out to be a release document from a repair/overhaul shop – a 24‑0078 form (exhibit A‑2). However, this document did prove that the ELT in question (serial no. A21860) had been serviced by an external organization (Ducey Avionics, AMO 29‑74). Mr. Edgcumbe indicated that he collected the ELT and provided it to Mr. Chivers for installation on aircraft C‑GVZJ at the time of the inspection. Mr. Edgcumbe reiterated that the ELT had been serviced and recertified and it was presented to Mr. Chivers in time for the 100‑hour inspection. He stated that he had exercised due diligence by completing a work order requesting that all ADs and other work be accomplished. Mr. Edgcumbe also stated that he was not subsequently advised that the AD had not been completed in accordance with the work instructions.

[41] Mr. Edgcumbe referred to section 14 of the Small Operator Maintenance Control Manual (SOMCM; exhibit A‑3):

14.  TECHNICAL DISPATCH

. . . Before each flight of an aircraft, the pilot in command shall consult the journey log and take note of the next scheduled maintenance requirement and any outstanding defects, to decide whether the flight may take place. . . .The final decision to accept an aircraft for any particular flight shall be the responsibility of the pilot in command.

[42] Mr. Edgcumbe presented additional work orders (exhibit A‑4) from a previous occasion, demonstrating how Mr. Chivers had in the past provided considerable detail of the work accomplished, unlike work order no. 21 (exhibit M‑5) which was lacking in detail. Additionally, the journey log book entry made it sound as if he had requested that the AD not be completed. Mr. Edgcumbe indicated that he did not know ahead of time that the AD had not been completed, as the work order was limited in information and he did not get to see the log book before the aircraft's next flight.

[43] Mr. Edgcumbe was not disputing the fact that the AD was not completed, but rather whether it was required to be completed. He testified that the only record he had to examine was the work order. Accordingly, both he and the pilot who flew it thought that the aircraft was airworthy and only Mr. Chivers knew it was not.

[44] In cross-examination, Mr. Edgcumbe explained his understanding of "due diligence" as going to every extent one can. Mr. Edgcumbe also indicated that he thought that the aircraft was ready to fly because of the statement on the work order that it was completed as per the log book entry.

[45] The Minister reminded Mr. Edgcumbe that Mr. Chivers had testified that corrosion had been discovered on the engine crankshaft and that subsequent inspections were required.

[46] With respect to the instructions to Mr. Chivers regarding the ELT installation, Mr. Edgcumbe explained that he had physically handed the ELT to an employee of Mr. Chivers, indicating that it needed to be installed. There was no written work order provided. In response to a question as to whether Mr. Edgcumbe knew that Mr. Rott was going to be flying the aircraft on October 4th and 5th over sparsely settled areas, he replied that Mr. Rott had mentioned High Level, which is greater than 25 NM away from the main base.

V. ANALYSIS

A. Offence 1

[47] The Minister quickly established the identity and registration of aircraft C‑GVZJ, as evidenced by the certificate of registration (exhibit M‑16).

[48] The date of the alleged flight was presented in a copy of the aircraft journey log book, specifically, at 8166.2 hours as recorded under "Total Air Time Since Manufacture" by the pilot‑in‑command, Mr. Rott (exhibit M‑4). The destination of the aircraft on October 4, 2004 was recorded in the log book, departing from Twin Island to High Level, Alberta, and returning back on October 5, 2004. Additionally, numerous other destinations were also visited, accumulating a total flight time of 10.8 hours, with all flight legs flown by Mr. Rott. The latter provided testimony verifying the dates, time and destinations, with the furthest port of call being approximately 300 NM from the starting point. Not only does this satisfy the date of the alleged offence, but it also proves that Mr. Rott was the pilot‑in‑command and that the distances flown were in access of 25 NM from the main base.

[49] With regard to there being a requirement for aircraft C-GVZJ to be equipped with a functioning ELT, I have to examine the applicable regulation. As can be determined from section 605.38(1) of the CARs, aircraft C-GVZJ is designated an aircraft under item 1 of columns 1, 2 and 3. However, there are provisions in sections 605.38(1) and 605.38(3)(d) which would be applicable, but having already established that aircraft C‑GVZJ was flown beyond the 25 NM radius, these provisions are not relevant. Additionally, section 605.39(1) might also have made a difference, except for two points: (1) as in accordance to section 605.39(1)(c), there was no placard displayed in the cockpit, and (2) the ELT was removed on July 22, 2004, according to a log book entry (exhibit M‑4). Testimony presented by Mr. Chivers concerning the ELT collaborated that the aircraft did not have an ELT installed at the time of the inspection on October 3, 2004. Mr. Chivers verified that he had made an entry in the log book that the ELT was not installed and there was no applicable placard regarding an ELT.

[50] With regard to Mr. Edgcumbe's alleged conversation with Inspector Cousins over the legalities of operating an aircraft without an ELT, I can only provide limited weight to the claim that Inspector Cousins advised him incorrectly. Not that Inspector Cousins could not inadvertently have advised Mr. Edgcumbe inaccurately, but because it greatly behoved Mr. Edgcumbe to research the most current regulation himself and decipher the matter accurately and correctly, this being a function and responsibility of the position he filled as the PRM for Edge Air. As for Inspector Cousins' email in response (exhibit M‑18), I find it has little weight for several reasons. Inspector Cousins stated that he had not spoken to Mr. Edgcumbe for some time and that "if such a conversation took place, I did not keep a record of it". Therefore, if Inspector Cousins could not remember the conversation as having occurred, how could he be expected to remember what was allegedly said? Not even Transport Canada inspectors are infallible. Mr. Edgcumbe should have exercised greater diligence given the safety implications.

[51] Section 101.01(1) of the CARs defines "owner" as ". . . the person who has legal custody and control of the aircraft". The requirement does not take into consideration which party paid for the aircraft, only that the person must have "legal custody and control". The fact remains that aircraft C‑GVZJ was clearly registered to the applicant under his company, 967247 Alberta Ltd., carrying on business as Edge Air, and under whose control and custody Mr. Edgcumbe was responsible for maintaining the aircraft. However, the lease agreement between the two respective companies, 1012154 Alberta Ltd. (Mr. Hendrickson's) and 967247 Alberta Ltd. (Mr. Edgcumbe's) is ambiguous with regard to whose name is used as the legal "owner". As noted above, section 101.01(1) of the CARs defines who the owner is and once Mr. Edgcumbe signed the lease agreement on November 25, 2003, the same date as the certificate of registration, Mr. Edgcumbe thereafter assumed full responsibility for the custody and control of aircraft C‑GVZJ. This responsibility continued until the expiry of the lease, when ownership reverted to Mr. Hendrickson on November 25, 2004.

[52] There is little doubt that Mr. Edgcumbe knew the aircraft did not have an ELT installed at the time of the inspection. However, this information was not added to his Edge Air work order no. 21 as it should have been, being an outstanding defect. Mr. Edgcumbe indicated that he had personally provided a recertified ELT (exhibit A‑2) to the AMO (to an unnamed employee) for installation on aircraft C‑GVZJ. For whatever reason, the ELT was not presented to Mr. Chivers for installation and having completed the inspection, Mr. Chivers accordingly noted its absence in the maintenance release on October 3, 2004. A prudent and diligent PRM would have generated a work order and thus established a paper trail (record) as part of a quality system.

[53] There is no clarifying statement or exhibit which illustrates when Mr. Edgcumbe received a copy of his completed work order, neither is there any supporting testimony or evidence suggesting that Mr. Edgcumbe received a copy of the maintenance package completed against aircraft C‑GVZJ, before October 4, 2004, when Mr. Edgcumbe authorized the aircraft for flight. As PRM of an aircraft under his control, as a very minimum, Mr. Edgcumbe should have requested a copy of the aircraft journey log book and examined the maintenance release therein for outstanding defects, non-conformances, equipment installation, etc. Had Mr. Edgcumbe exercised due diligence and duty as the PRM for Edge Air, the Minister would not have sanctioned offence 1.

B. Offence 2

[54] The Small Operator Maintenance Control Manual (SOMCM) is a legal document approved by the Minister of Transport (exhibit A‑3). Mr. Edgcumbe operated Edge Air under the provision and guidance of this document. It describes how a small operator will conduct the maintenance requirements of the organization. The SOMCM belonging to Mr. Edgcumbe was a generic document provided by Transport Canada for small operations such as his. It contains little detail with regard to how maintenance activities are conducted, consisting of no more than four pages including the cover page containing the Minister's approval. However, section 3 of the SOMCM is worthy of note:

3. APPROVAL

This document specifies the operator's means of compliance with the Canadian Aviation Regulations (CARs). Failure to comply with the procedures outlined in this SOMCM may result in suspension of the operator certificate, the aircraft certificates of airworthiness, or both. In case of conflict between this manual and the CARs, the CARs will prevail. In cases where this manual is more restrictive than the CARs, this manual will prevail. . . .

[55] The Minister of Transport and Mr. Edgcumbe signed the SOMCM on September 18, 2003. The document also provides reference to aircraft C‑GVZJ and identifies the name of the operator as 967247 Alberta Ltd., carrying on business as Edge Air. Additionally, Mr. Edgcumbe is identified as the PRM also referred to as the maintenance manager.

[56] Mr. Edgcumbe would have read this document for it was the means by which all maintenance and maintenance management would have been conducted by him as the PRM. Several sections from this very important document are worthy of note.

[57] Section 5 of the SOMCM reads in part as follows:

5. MAINTENANCE MANAGER'S RESPONSIBILITIES

The maintenance manager is responsible for the following: planning and control of all maintenance activities, liaison with Transport Canada on maintenance topics; and liaison with all contracted Approved Maintenance Organizations (AMOs). The maintenance manager shall have access to all technical and regulatory publications necessary . . . These include but are not limited to . . . Airworthiness Directives . . .  The maintenance manager shall remove from service any aircraft that are unsafe, or that do not comply with the CARs or this manual. . . .

[58] Section 6 of the SOMCM reads in part as follows:

6. AIRCRAFT TECHNICAL RECORDS

. . . any outstanding items remaining upon completion of the maintenance check are entered in the aircraft journey log prior to flight.

[59] Section 7 of the SOMCM reads in part as follows:

7. MAINTENANCE SCHEDULES

. . . the maintenance manager shall ensure the aircraft has been inspected and that an entry is made to that effect in the journey log book.

[60] Section 9 of the SOMCM reads as follows:

9. AIRWORTHINESS DIRECTIVES

The maintenance manager shall ensure that the operator's aircraft are in compliance with all applicable airworthiness directives and other mandatory maintenance requirements. He or she shall examine the aircraft records upon appointment to the position, and upon each acquisition of a new aircraft, to verify this compliance. The maintenance manager shall determine the applicability of airworthiness directives to the aircraft operated, by reviewing all new and revised airworthiness directives upon receipt. Details of all airworthiness directives found applicable, and details of all directives pertaining to the aircraft make and model, with an indication whether or not they are applicable to the aircraft concerned, shall be entered in the appropriate . . . technical record. The maintenance manager shall determine the date, air time or operating cycles, when the actions specified in the directive must be taken. If the required actions are due before the next scheduled maintenance activity he or she shall make the necessary entries in the aircraft journey log in accordance with Section 14.

[61] An undisputable fact is that Mr. Edgcumbe was the PRM for Edge Air. Not only did he accept the responsibility, but he must also have initially applied to the Minister for the position and was accepted accordingly (exhibit M‑17) after a standard interview where he was required to demonstrate his knowledge and expertise.

[62] Mr. Edgcumbe, in the performance of his PRM duties, issued an Edge Air work order requesting that the 100‑hour inspection and ADs be completed. He stated that due to the length of time taken to complete the inspection, he had assumed that all work had been completed with no outstanding items. However, during a telephone call with Mr. Chivers over AD 98‑02‑08, he was informed that the AD would cost approximately $400 to complete. The Tribunal was then informed that he had asked Mr. Chivers to reschedule the work on the AD, apparently as it was not certain who was accountable for billing, Mr. Edgcumbe or Mr. Hendrickson.

[63] Mr. Edgcumbe testified that he had seen the completed work order but had not seen the journey log book entry, even though the work order referenced the journey log as follows: "carried out as per log book entries". Irrespective of his duties and responsibility, as noted above from the SOMCM, Mr. Edgcumbe subsequently authorized Mr. Rott to fly the aircraft without examining the maintenance release in the journey log book.

[64] Mr. Edgcumbe referred to section 14 of the SOMCM which provides the following:

14.  TECHNICAL DISPATCH

Technical dispatch of aircraft shall be by means of the aircraft journey log. Before each flight of an aircraft, the pilot in command shall consult the journey log and take note of . . . any outstanding defects. . . . The final decision to accept an aircraft for any particular flight shall be the responsibility of the pilot in command.

[65] What Mr. Edgcumbe failed to consider was that although a pilot‑in‑command has the right of refusal, it is still the responsibility of others, that is, the PRM, to ensure that all the applicable information and data is available for the pilot to make an educated decision. More basic to the pilot making the final decision, had Mr. Edgcumbe read the journey log book entry, as referenced in his returned work order from Mr. Chivers, he would have realized that AD 98‑02‑08 had not been completed in accordance to the AD and/or his work order's instructions. Subsequently, he would have removed aircraft C‑GVZJ from service pending further investigation and/or action. Additionally, he would also have known that the ELT had not been reinstalled. Mr. Edgcumbe stated that without knowing the AD had not been completed, he had no way of preventing the chain of events. However, the chain of events could very easily have been broken, had Mr. Edgcumbe performed his duty and due diligence, rather than making an assumption that all work was completed. Mr. Edgcumbe's lack of action was paramount to negligence. There is no question that others too could have been more diligent and competent in their actions. However, this case concerns the allegations against Mr. Edgcumbe and as such he must accept responsibility for his lack of action and incompetence as the PRM for Edge Air.

[66] With regard to AD 98-02-08, it is beyond this Tribunal to attempt to clarify what course of action the AD required. However, it is perfectly apparent that insufficient records had been either maintained or researched to determine whether the AD required further action. The compliance of AD 98-02-08 was the responsibility of Mr. Edgcumbe and consequently he should have left no stone unturned in researching it to find out its applicability. If records did not exist or were insufficient to verify that corrosion had or had not been discovered, then the AD would still have been required. Additionally, having written the maintenance instructions in the Edge Air work order as follows "Please complete 100hr inspection as per Piper Inspection sheets including AD's…", Mr. Edgcumbe, upon receiving back a copy of the work order, should have referenced the journey log book for the final maintenance release, as referenced by Mr. Chivers as follows: "carried out as per log book entries". With regard to due diligence, this would have been the very minimum expected.

[67] I find some controversy and contradiction in the Minister's witness, Mr. Rott. According to his testimony, Mr. Chivers had informed him of the AD before he had left on October 4, 2004, and having been given the information, Mr. Rott did not consider it to be a safety issue. However, under cross-examination by Mr. Edgcumbe, Mr. Rott indicated he was not aware at the time he flew the aircraft that there was an AD against it. Again, when re-examined by the Minister over this very point, if he knew of any discrepancies at the beginning of the flight relating to aircraft C‑GVZJ, he replied that as far as he knew there were no deficiencies. Additionally, Mr. Rott stated that he did not know at the time he flew the aircraft that an ELT was also not installed.

C. Offence 3

[68] The aircraft identification and legal custody are not disputable facts. The lease agreement terms are obvious. It commenced on November 25, 2003 and expired on November 25, 2004, at which time the aircraft legal status reverted back to Mr. Hendrickson. Furthermore, section 605.97 of the CARs is very explicit.

[69] Inspector Paulhus stated he was able to substantiate that the aircraft journey log book had not been returned to Mr. Hendrickson, this accusation he validated by testimony from Mr. Chivers who had witnessed the log book being given back to Mr. Edgcumbe. There was testimony from several witnesses attesting that Mr. Edgcumbe had handed back the log book to Mr. Hendrickson. The log book transfer occurred as Messrs. Hendrickson and Edgcumbe were discussing the damage to aircraft C‑GVZJ. Furthermore, Mr. Chivers stated that he thought the log book was still in Mr. Edgcumbe's possession, but he did not elaborate further on his reasoning.

[70] Mr. Rott was one of the last people to have seen the journey log book before the arrival of Messrs. Hendrickson and Edgcumbe. Mr. Rott testified that he had completed the entry at the end of his last flight and placed the log book back inside the aircraft. Confirming this, Mr. Hendrickson remembered he had found it inside the aircraft after Mr. Rott's flight, during his examination of the damaged aircraft. Apparently, during this same interval, Mr. Hendrickson indicated that it was Mr. Edgcumbe who had noticed that the last entry had not been signed. However, under examination, Mr. Edgcumbe stated that the last time he had seen the log book was on the final flight prior to the last 100‑hour inspection on September 7, 2004. Mr. Hendrickson seemed very certain of his testimony and was able to provide significant detail concerning the transfer of the log book to Mr. Edgcumbe.

[71] Mr. Hendrickson indicated that, with the exception of the log book, he had all other aircraft technical records in his possession. Mr. Edgcumbe attempted to subterfuge this testimony during cross-examination by presenting other original technical records pertaining to aircraft C‑GVZJ, thus casting doubt over Mr. Hendrickson's ability to maintain and control technical records, including the journey log book, and raising conjecture that Mr. Hendrickson himself might have misplaced it. However, it also raised the question as to why Mr. Edgcumbe had also not returned those records to Mr. Hendrickson. I found Mr. Hendrickson to be extremely creditable and cognizant of all the facts.

[72] Further to this, Mr. Edgcumbe explained that if the journey log book had been handed over to him, it would have happened several days after October 7, 2004, as the invoice to Mr. Rott was created without the log book. Mr. Edgcumbe repeated several times that he did not have the log book and that he did not know where it was, reiterating that he was not given it.

[73] Mr. Hendrickson ventured that Mr. Edgcumbe had not returned the log book and keys after the lease expiry date, as he was trying to force Mr. Hendrickson to release Mr. Edgcumbe from his lease obligation (referring to monies owed, etc.). As implausible as this may sound, there is some substantiating evidence to suggest that this may well be the situation. A series of email correspondence between Messrs. Edgcumbe and Hendrickson were adduced in evidence (exhibit M‑20). One email dated May 27, 2005 from Mr. Edgcumbe to Mr. Hendrickson states the following:

Regarding your statement on your email tonight, I thought I was very clear in my last email to you. You provide me with a letter (which should not be a problem as you know the condition of the aircraft better than I do) stating that the lease requirements are met, and you get your documents and keys. End of story. . . .

(emphasis added)

[74] At the time of the hearing, the outstanding lease agreement details had not been settled and the aircraft journey log book and the keys had not been returned.

VI. CONCLUSION

[75] The three alleged offences are strict liability offences and consequently the Minister need only prove on a balance of probabilities that they were committed, thus behoving the applicant to prove otherwise. The Minister's case, therefore, was to prove that Mr. Edgcumbe had contravened sections 605.38(1), 605.84(1)(b) and 605.97 of the CARs.

[76] I find that the Minister was able to prove on a balance of probabilities that Mr. Edgcumbe did commit and/or allow to be committed all three offences, while aircraft C‑GVZJ was under his custody, care and control. Mr. Edgcumbe was the registered owner, thus the legal owner at the time of the infractions, rendering him accountable for the aircraft as provisioned under the CARs. Additionally, the Minister proved that Mr. Edgcumbe was the PRM for Edge Air and that he had signed a lease agreement with Mr. Hendrickson for aircraft C‑GVZJ, which expired on November 25, 2004.

[77] The Minister proved that, on a balance of probabilities, Mr. Edgcumbe did receive the journey log book from Mr. Hendrickson. With respect to evidence equally as important and possibly more incriminating is the email of May 27, 2005 from Mr. Edgcumbe informing Mr. Hendrickson how he can receive back his documents and keys (exhibit M‑20).

[78] The Minister was able to prove that Mr. Edgcumbe as the PRM for Edge Air did not exercise due diligence in the care and maintenance of the aircraft and associated technical records. The SOMCM clearly provides as a minimum what the duties and responsibilities are. Furthermore, the document references the PRM to the CARs for further clarification. Mr. Edgcumbe was negligent in his duties by assuming work had been completed, when he should have physically referenced the aircraft primary technical record – the journey log book, as indicated against the returned Edge Air work order. In this respect, Mr. Edgcumbe would also have realized that the aircraft was not equipped with a recertified ELT. Furthermore, Mr. Rott had told Mr. Edgcumbe that he was flying to High Level, Alberta, being greater than 25 NM from the main base.

[79] At this point, the Minister's case was met, unless Mr. Edgcumbe could prove otherwise and/or demonstrate that he exercised all due diligence in the prevention of the alleged offences. Unfortunately, Mr. Edgcumbe did not do so to the satisfaction of the Tribunal. I have found, therefore, Mr. Edgcumbe's case, consisting of four exhibits and testimony, to be inconclusive. Additionally, I have found Mr. Edgcumbe's testimony wanting in both detail and credibility.

[80] Aviation is not something to be taken lightly or wantonly. It is a deathly serious affair with potentially disastrous consequences, especially when, among other factors, complacency is allowed to develop at the expense of safety. I find Mr. Edgcumbe's disregard and lack of knowledge regarding the regulations, his former PRM duties for Edge Air and even as a pilot and registered owner of an aircraft to be entirely unsatisfactory. Irrespective of Mr. Edgcumbe's lack of knowledge, ignorance of the law is not an excuse.

VII. DETERMINATION

[81] The Minister has demonstrated on a balance of probabilities that Mr. Edgcumbe has contravened sections 605.38(1), 605.84(1)(b) and 605.97 of the CARs. The Tribunal has decided to uphold the Minister's decision and increase the total monetary penalty to $2 500, as follows:

  • Offence 1 – The penalty is increased from $250 to $500.
  • Offence 2 – The penalty is increased from $1 000 to $1 500.
  • Offence 3 – The penalty is increased from $250 to $500.

March 3, 2008

Keith E. Green

Member


Appeal decision
Faye H. Smith, Elizabeth MacNab, Dr. Trevor Allan Gillmore


Decision: November 25, 2008

Citation: Edgcumbe v. Canada (Minister of Transport), 2008 TATCE 34 (appeal)

Heard at Toronto, Ontario, on November 6, 2008

Held: The appeal is dismissed. The appeal panel confirms the review determination and the monetary penalties of $500, $1500 and $500 for breaches of sections 605.38(1), 605.84(1)(b) and 605.97 of the Canadian Aviation Regulations.

The total amount of $2500 is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this decision. No order is made with respect to the allocation of costs.

I. BACKGROUND

[1] A notice of assessment of monetary penalty of $1500 was issued by the Minister of Transport on September 30, 2005, against the appellant, Jason Peter Edgcumbe, with respect to allegations of breaches of sections 605.38(1), 605.84(1) and 605.97 of the Canadian Aviation Regulations (CARs).

[2] A review hearing was held before member Keith Green at Edmonton, Alberta, on November 23, 2006, and his determination was rendered on March 3, 2008. The review member found that the alleged infractions had occurred and increased the penalties from $250 to $500 for the infractions under sections 605.38(1) and 605.97, and from $1000 to $1500 for that under section 605.84(1)(b).

[3] Mr. Edgcumbe filed a request for appeal. Among the grounds for appeal, he included one based on an argument that two of the alleged infractions took place outside the one year limitation period established by section 26 of the Aeronautics Act (Act). The infractions took place on October 4, 2004, and he was not served with the notice of assessment of monetary penalty until October 21, 2005. Another ground of appeal was that the review member had increased the penalties assessed by the Minister, without providing adequate reasons for the increase.

II. APPEAL HEARING

[4] An appeal hearing was scheduled for 9:30 a.m. on November 6, 2008, at 180 Queen Street West in Toronto, Ontario, and notice of the hearing was delivered to Mr. Edgcumbe by Priority Courier on August 27, 2008. When Mr. Edgcumbe did not appear at the place of hearing at the appointed time, attempts were made by the Tribunal staff to contact him but these attempts were unsuccessful. The hearing was convened at 10:05 a.m. In the absence of the appellant, there was no case for the respondent to meet and the appeal panel confirmed the decision of the review member.

III. ALLOCATION OF COSTS

[5] The only issue to be argued by the respondent was whether costs should be awarded under section 19(1) of the Transportation Appeal Tribunal of Canada Act (TATC Act). This section provides the following:

19. (1) The Tribunal may award any costs, and may require the reimbursement of any expenses incurred in connection with a hearing, that it considers reasonable if

(a) it is seized of the matter for reasons that are frivolous or vexatious;

(b) a party that files a request for a review or an appeal and does not appear at the hearing does not establish that there was sufficient reason to justify their absence; or

(c) a party that is granted an adjournment of the hearing requested the adjournment without adequate notice to the Tribunal.

[6] In this case, the appeal panel had to determine whether section 19(1)(b) of the TATC Act would apply. In arguing that costs and expenses should be awarded, the Minister's representative acknowledged that a person subjected to a penalty had a right, under the Act, to file an appeal and that appeal could be filed as a precautionary measure while determining whether adequate grounds existed to support the appeal. He argued that in this case, however, there were many grounds stated as the basis for the appeal and that time and money had been spent in preparation for the hearing. He also pointed out that the section had now been in force for five years and suggested that it might be time to "send a signal" to the industry that unjustified failures to appear could result in an order for costs.

[7] In his answer to a question from the Chairperson of the panel, the Minister's representative gave as examples of costs that could be considered, the expenses of the panel members and the cost of the hearing room, if applicable. In answer to further questions, he explained that he was speaking about the Minister's and the Tribunal's costs but, other than travel expenses, which would apply to both the Minister and the Tribunal, he gave no examples of the Minister's costs. When pressed to name an amount, he suggested that a global award of $3000 would be reasonable.

[8] The application of section 19(1) of the TATC Act was extensively discussed in the appeal panel's decision in Butterfield v. Canada (Minister of Transport), [2004], appeal decision, TATC file no. P-2933-02, [2004] C.T.A.T.D. no. 47 (QL). While it was held in that case that the costs mentioned in section 19(1) were not equivalent to court costs, any costs awarded by the Tribunal would need to have some basis for quantification other than a mere global estimate that includes both the Minister's and the Tribunal's expenses.

[9] The appeal panel of the Butterfield decision also stated that:

17  The Tribunal functions under the guidance of fairness and natural justice. The legal and technical rules of evidence do not apply and the Tribunal hearings function under only 20 rules. It is our desire to keep the functioning of the Tribunal as simple as possible so that it may be user friendly and accessible to all. In that vein we see the award of costs as a tool to be utilized in only exceptional circumstances.

[10] While it might be argued that the present case can be distinguished from the Butterfield case on the grounds that in that case it was known ahead of time that Mr. Butterfield would not appear, there was a specific finding that his absence was unjustified, and so an unjustified or unexplained failure to appear will not constitute the "exceptional circumstances" mentioned above.

[11] In the matter under consideration, Mr. Edgcumbe will already suffer serious consequences as a result of his failure to appear. The appeal panel notes that the review determination substantially increased the penalties assessed by the Minister and that Mr. Edgcumbe will have to pay these amounts without the opportunity to argue a number of issues that could have lessened or even eliminated these penalties. To the extent that a "message to the industry" is necessary or desirable, this result will serve as a reminder.

IV. DECISION

[12] The appeal is dismissed. The appeal panel confirms the review determination and the monetary penalties of $500, $1500 and $500 for breaches of sections 605.38(1), 605.84(1)(b) and 605.97 of the CARs.

[13] To date, the Tribunal has not awarded costs and it is the panel's opinion that the circumstances of this case are not so different from others that have been before it as to come within the description of "exceptional circumstances" referred to in the Butterfield case. Consequently, no order as to costs is made.

November 25, 2008

Reasons for appeal decision by: Ms. Elizabeth A. MacNab, Member

Concurred by: Mrs. Faye Smith, Chairperson

Dr. Trevor Allan Gillmore