Decisions

TATC File No. C-3336-33
MoT File No. RAP5504-60784 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Lorin Edgar Rubbert, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, s. 602.02


Review Determination
Howard M. Bruce


Decision: November 6, 2009

Citation: Lorin Edgar Rubbert v. Canada (Minister of Transport) 2009 TATCE 33 (review)

Heard at Regina, Saskatchewan, on April 8 and 9, 2009

Held: The Minister of Transport has proven, on a balance of probabilities, that the applicant has contravened paragraph 401.03(1)(a) of the Canadian Aviation Regulations. The assessed monetary penalty of $5 000 is upheld. The amount of $5 000 is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.

File Nos.: C-3335-41

C-3336-33

I. BACKGOUND

A. Rubbert Aerial Spraying Inc. (File No. C-3335-41)

[1] On January 23, 2007, the Minister of Transport issued a notice of assessment of monetary penalty in the total amount of $227 500 to the applicant, Rubbert Aerial Spraying Inc., for contravening paragraph 700.02(2)(d) and subsection 605.94(1) of the Canadian Aviation Regulations (CARs), pursuant to section 7.7 of the Aeronautics Act (Act).

[2] It is alleged that on various occasions between May 30 and August 28, 2006, in the province of Saskatchewan, the applicant, as a commercial aerial applicator, operated a Piper PA25‑235 aeroplane, bearing Canadian registration marks C‑FHNZ, to conduct aerial work involving the dispersal of products for different farmers, when it did not hold and comply with an air operator certificate providing authorization to do so, contravening paragraph 700.02(2)(d) of the CARs (44 counts at $5 000 per count, for a total of $220 000).

[3] It is also alleged that on various occasions between May 31 and August 27, 2006, at various locations in the province of Saskatchewan, the applicant, being the person responsible for making an entry in a journey log of an aircraft, a PA25-235, bearing Canadian registration C‑FHNZ, failed to enter the particulars set out in column I of an item in schedule 1, subsection 605.94(1) of the CARs, in the journey log at the time set out in column II of the item. Specifically, the applicant failed to enter the air time of each flight or series of flights and cumulative total air time daily, on completing each flight or series of flights. Consequently, the Minister of Transport assessed a monetary penalty of $7500 against the applicant, for contravening subsection 605.94(1) of the CARs.

[4] On February 19, 2007, the Transportation Appeal Tribunal of Canada received a request for review from the applicant.

B. Lorin Edgar Rubbert (File No. C-3336-33)

[5] On January 23, 2007, Transport Canada issued a notice of assessment of monetary penalty in the amount of $5000 to the applicant, Lorin Edgar Rubbert, for contravening paragraph 401.03(1)(a) of the CARs, pursuant to section 7.7 of the Act.

[6] It is alleged that on various occasions between May 31 and August 28, 2006, in various locations in the province of Saskatchewan, the applicant exercised the privileges of a flight crew licence when he did not hold the appropriate licence. Specifically, he acted as pilot‑in‑command of an aircraft, a PA25-235, bearing Canadian registration C-FHNZ, for hire or reward when he did not hold a commercial pilot licence.

[7] On February 19, 2007, the Transportation Appeal Tribunal of Canada received a request for review from the applicant.

II. LEGISLATION

[8] The definition of the word "farmer" is found as follows under section 700.01 of the CARs:

"farmer" - means a person whose primary source of income is derived from the tillage of the soil, the raising of livestock or poultry, dairy farming, the growing of grain, fruit, vegetables or tobacco, or any other operation of a similar nature.

[9] Paragraphs 401.03(1)(a) and 700.02(2)(d) and subsections 605.94(1) and 700.02(3) of the CARs provide the following:

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.

605.94 (1) The particulars set out in column I of an item in Schedule I to this Division shall be recorded in the journey log at the time set out in column II of the item and by the person responsible for making entries set out in column III of that item.

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

. . .

(d) the dispersal of products.

(3) A person who does not hold an air operator certificate may conduct aerial work involving the dispersal of products if

(a) the person is a farmer;

(b) the person owns the aircraft that is used to disperse the products;

(c) the products are dispersed for agricultural purposes; and

(d) the dispersal of the products takes place within 25 miles of the centre of the person's farm.

III. MINISTER OF TRANSPORT'S EVIDENCE

(1) Ed Balon

[10] Ed Balon is the owner of Balon's Aerial Spray Ltd. in the Wakaw district of Saskatchewan. He is a farmer and holds an air operator certificate (AOC).

[11] Mr. Balon indicated that in the summer of 2006, the farmers in the Wakaw district were dealing with a severe infestation of Bertha armyworm which began at the beginning of August. The only way to effectively deal with the situation and avoid large scale damage to crops was for farmers to proceed with aerial spraying of pesticides.

[12] In the first week of August 2006, Mr. Balon became concerned with the fact that three individuals from Southern Saskatchewan, including Mr. Rubbert, were spraying products in the Wakaw district, as he believed that some of them were "flying farmers", the term used to describe farmers that do not hold an AOC but can still proceed with the aerial application of products if they remain within the 25‑mile limit provided for in subsection 700.02(3) of the CARs.

[13] Mr. Balon testified that, according to his understanding, a farmer who owns an aircraft can only conduct aerial spraying operations within a 25‑mile radius from his farm, unless an exemption is obtained from Transport Canada. Mr. Balon indicated that he believed that some of these individuals did not have an AOC, and that they were clearly beyond the 25‑mile limit from their farms. He specified that the outbreak of Bertha armyworm was not severe enough to necessitate the granting of exemptions, and that there were sufficient AOC holders to supply the spraying demand. In fact, Mr. Balon was himself calling other operators looking for work.

[14] Mr. Balon indicated that he was frustrated because these pilots could be operating without an AOC. This created an unfair economic advantage because the cost of obtaining and maintaining an AOC is much higher.

[15] Mr. Balon spoke of his concerns to another pilot and aerial applicator, Joe Varjassy. At the time, Mr. Balon was under the impression that the director and pilot of Rubbert Aerial Spraying, Mr. Rubbert, who was the outgoing president of the Saskatchewan Aerial Applicators Association, held an AOC. Following this conversation, Mr. Varjassy told him that he would be contacting Transport Canada to file a complaint.

(2) Wayne Silzer

[16] Wayne Silzer describes himself as a self-employed businessman. He is the owner of Fly‑On Ag Services Inc., a commercial aerial applicator and also a farmer in the Lake Lenore district.

[17] Mr. Silzer recalled that in August 2006, there was a severe outbreak of Bertha armyworm in the area, and that he had limited success finding pilots to help him meet the large demand for aerial application of products. He also recalled getting several calls from Mr. Balon, informing him that things were not going well in the Wakaw district.

[18] In the first week of August 2006, Mr. Rubbert called him to ask to borrow some equipment. As the outbreak became more serious and he was overloaded with work, Mr. Silzer later contacted Mr. Rubbert to see if he was interested in helping him with some aerial spraying work. Mr. Silzer indicated that he had no knowledge of the applicant's status with Transport Canada.

[19] Rubbert Aerial Spraying, through its representative, Mr. Rubbert, and two other pilots, Raymond Blerot and Dwight Monteyne, conducted some aerial spraying operations for Fly‑On Ag Services and provided assistance checking fields.

[20] There were problems with some of the fields sprayed by Rubbert Aerial Spraying, but there was nothing out of the norm. Mr. Silzer recalled having a discussion with Mr. Rubbert, while sitting in a hangar and finding out that neither Rubbert Aerial Spraying nor his pilots held an AOC. After reviewing the CARs, Mr. Silzer believed that they were still within legal boundaries, as he tried to keep them within 25 miles of his base of operations.

[21] Mr. Silzer became aware that Transport Canada was concerned with the applicants' involvement in his operations. He received a call from Inspector Richard Gagnon of Transport Canada, who informed him that, in his view, the use of the applicants' services was illegal. He demanded that they cease their services immediately.

[22] Mr. Silzer was disappointed that Inspector Gagnon did not assist him in obtaining an exemption for the applicant, and he even called the office of the Minister of Agriculture and Agri‑Food Canada, but to no avail.

[23] Mr. Silzer identified different forms produced as evidence (exhibits M-6 to M-22). These forms had been prepared and used by Fly‑On Ag Services. Mr. Silzer described and discussed their content. He also indicated that he accepted these documents as being a true and accurate reflection of the aerial application work done for Fly‑On Ag Services by Rubbert Aerial Spraying.

[24] According to Mr. Silzer, there was an understanding that Rubbert Aerial Spraying would receive compensation for its services and expenses. Once all the work was completed, Mr. Silzer insisted on settling his account with Rubbert Aerial Spraying. It is at this time that a pilot acre report (exhibit M‑3) was submitted to Mr. Silzer by Rubbert Aerial Spraying. Mr. Silzer accepted this report and an expense report (exhibit M‑5) as a true and accurate account of the work that Rubbert Aerial Spraying had performed for him. Mr. Silzer then proceeded to write a cheque to Oxbow Crop Care Inc. at the request of Mr. Rubbert. However, Mr. Rubbert called later to ask that Mr. Silzer write the cheque of $65 679.75 to the order of Rubbert Aerial Spraying Inc. (exhibit M‑4).

(3) Gustave Gaudet

[25] During the summer of 2006, Gustave Gaudet worked for Wendland Ag Services Ltd., a business that sells chemicals and pesticides and also provides the service of matching farmers with aerial applicators for the dispersal of the products they purchase.

[26] The primary aerial applicator for the previous several years was Provincial Airways, owned and operated by Bill Nyman. In the summer of 2006, due to an abnormal outbreak of Bertha armyworm, Wendland Ag Services had to apply pesticides to over 30 000 acres which was well over their average for this period. To make matters worse, Mr. Nyman had to reduce his operations due to personal family matters. As a replacement, he sent Mr. Rubbert who used the services of two other pilots, namely Messrs. Blerot and Monteyne, to provide aerial application services.

[27] Mr. Gaudet testified that Rubbert Aerial Spraying completed the dispersal of products in the Wakaw area before leaving to work for another operator. Mr. Gaudet was asked to describe and discuss the content of the Wendland Ag Services aerial applications worksheets that were introduced as evidence (exhibits M‑23 to M‑26).

[28] After the aerial application for Wendland Ag Services had been completed, Mr. Rubbert provided to Wendland Ag Services a pilot acre report (exhibit M‑27). Mr. Gaudet reviewed this report and stated that it was a true and accurate reflection of the aerial services provided by Rubbert Aerial Spraying.

(4) Brian McFarlane

[29] Brian McFarlane is a civil aviation inspector with Transport Canada, and is also a farmer in the north-east region of Saskatoon, where there was an outbreak of Bertha armyworm in the late summer of 2006.

[30] At the beginning of August 2006, Mr. McFarlane had his fields sprayed by an aerial applicator and he declared that he had no difficulty in finding an aerial applicator. Mr. McFarlane drew a box on the map produced as evidence (exhibit M‑65) to indicate the area of the outbreak.

[31] The Transport Canada office in Saskatoon received a complaint regarding the presence of illegal aerial applicators operating in the Wakaw area. Mr. McFarlane was sent to the area to obtain more information. During his visit, he saw the applicant's aircraft C-FHNZ and took a picture of it (exhibit M-28). Mr. McFarlane testified that he also saw the aircraft of Messrs. Blerot and Monteyne.

(5) James Welwood

[32] James Welwood is a superintendant with Transport Canada. His primary duties are to assess the validity of complaints and assign the various cases to his investigators. The lead investigator in the present matter was originally Mr. Richard Gagnon who continued the investigation until his departure on long-term leave in 2008.

[33] Inspector Welwood was actively involved in the investigation regarding the applicants, and in particular, participated in the drafting and execution of the search warrant executed on the applicants' premises. This search warrant was executed by a team of four or five investigators and a Royal Canadian Mounted Police (RCMP) officer. Mr. Welwood's duties during the search were to collect and record the documents seized during the execution of the warrant. During his testimony, he described and discussed various documents that were seized on the applicants' premises (exhibits M‑29 to M‑64).

(6) Michael Yaholnitsky

[34] Michael Yaholnitsky is a commercial aerial applicator operating in the Wakaw area. He confirmed that in the summer of 2006 there was an outbreak of Bertha armyworm and he started getting numerous calls from farmers looking for aerial applicators.

[35] Mr. Yaholnitsky stated that he received a call from Mr. Rubbert, offering his services for aerial application. After the call, he looked in the Saskatchewan Aerial Applicators Association Directory to obtain some information on Mr. Rubbert. He saw that he was registered as a flying farmer not holding an AOC, which he found odd, as Mr. Rubbert had always represented himself as having an AOC. Mr. Yaholnitsky testified that he only uses the services of AOC holders, and that he had enough operators available to complete all his work in 2006. According to Mr. Yaholnitsky, the outbreak of 2006 was not severe enough to warrant the granting of exemptions to flying farmers.

(7) Joe Gaudry

[36] Joe Gaudry is a civil aviation inspector with the Winnipeg office of Transport Canada. He has been an inspector for 10 years.

[37] On August 2, 2006, his office received a complaint from Mr. Varjassy about three aerial applicators in the Wakaw district, including the applicant. He explained that they were operating illegally, as they did not hold an AOC.

[38] A search of the Transport Canada database allowed Mr. Gaudry to confirm that the aircraft C-FHNZ was registered to Mr. Rubbert (exhibit M‑38) and that Mr. Rubbert held a private pilot licence (exhibit M‑66). During the investigation in the present matter, Mr. Gaudry confirmed that the initial lead inspector was Richard Gagnon, and that he was asked to assist in data gathering. He was officially the number two investigator in the file, and took the lead role when Mr. Gagnon took a leave of absence. He also confirmed having made a complete search of all Transport Canada databases and found that Mr. Rubbert did not hold an AOC.

[39] Inspector Gaudry testified that on August 3, 2006, he flew to Wakaw to proceed with his investigation. He contacted Wendland Ag Services who confirmed that they had used Rubbert Aerial Spraying as an aerial applicator. He tried unsuccessfully to reach Mr. Rubbert. On August 5, 2006, he interviewed Messrs. Balon and Varjassy.

[40] Mr. Gaudry proceeded to search the Saskatchewan Corporate Registry and found that Rubbert Aerial Spraying lists crop spraying as the nature of its business, and that Mr. Rubbert is the president of this corporation. He also completed a search for Rubbert Farms Inc. and confirmed that Lorna Rubbert was the sole shareholder and director of the corporation. The excerpts in the registry were produced as exhibit M‑67.

[41] Mr. Gaudry was able to obtain more details during his discussion with the representatives of Wendland Ag Services. Upon consulting the second page of the pilot acre report prepared by the applicant (exhibit M-27), the name Bob Hefferman was missing. The reason was that Provincial Airways was doing the aerial spraying work for Wendland Ag Services but had to leave and asked the applicant to complete the work. However, Provincial Airways was paid for the services rendered to Mr. Hefferman.

[42] Wendland Ag Services confirmed to Mr. Gaudry that following the reception of the pilot acre report from Rubbert Aerial Spraying (exhibit M‑27), they reviewed the document and considered it to be a true and accurate reflection of the services rendered by the applicant, and on the basis of this document, a cheque in the amount of $8 347.50 was made to the applicant.

[43] Mr. Gaudry produced a copy of an excerpt from the 2006 directory of the Saskatchewan Aerial Applicators Association, which lists Mr. Rubbert as a flying farmer and warehouse operator, not as a commercial operator (exhibit M‑69).

[44] In addition, Mr. Gaudry produced a copy of an excerpt from the 2006 directory of the Canadian Aerial Applicators Association in which there are two entries for Mr. Rubbert, the first as being a commercial operator and the second as a flying farmer (exhibit M‑70). This description seemed inaccurate to Mr. Gaudry, as neither Mr. Rubbert nor Rubbert Aerial Spraying owns a farm and does not meet the definition of a farmer in section 700.01 of the CARs. Even if they did meet the requirements, the exception in paragraph 700.02(3) of the CARs would not apply, as they would have been beyond the 25‑mile limit.

IV. MINISTER'S CLOSING STATEMENT

[45] The Minister's representative argues that Mr. Rubbert is not a flying farmer and that the exception provided in subsection 700.02(3) of the CARs does not apply. Rubbert Aerial Spraying is not engaged in farming operations and cannot use this exception.

[46] According to the Minister, the evidence clearly establishes that Rubbert Aerial Spraying is a corporate structure which offers commercial services, namely crop spraying, and as it does not hold an AOC, all such aerial work performed is in contravention of paragraph 700.02(2)(d) of the CARs. The Minister has provided evidence of such aerial work. The Minister also submits that Rubbert Aerial Spraying failed to record flights from May 31 to August 27, 2006, thus acting in contravention of subsection 605.94(1) of the CARs.

[47] The Minister's representative states that, to be able to fly for hire or reward, according to subsection 401.03(1) of the CARs, one must hold a commercial pilot licence. Mr. Rubbert does not hold such a licence and the evidence demonstrates that he flew for hire or reward.

[48] The assessed amounts for each contravention are reasonable considering that the applicants acted in blatant disregard for the applicable regulations.

V. ANALYSIS

A. Rubbert Aerial Spraying Inc. (File No. C-3335-41)

[49] To render a determination regarding the contraventions of paragraph 700.02(2)(d) and subsection 605.94(1) of the CARs, it is necessary to examine the applicable legislative provisions and determine if the Minister has proven the essential elements of each contravention on the balance of probabilities.

(1) Paragraph 700.02(2)(d) of the CARs (44 Counts)

[50] With respect to the 44 counts relating to paragraph 700.02(2)(d) of the CARs, the Tribunal applies the following logic:

  • subsection 700.02(2) of the CARs specifies that an AOC is required for any person doing aerial work;
  • subsection 101.01(1) of the CARs defines "aerial work" as "a commercial air service other than an air transport service or a flight training service";
  • subsection 3(1) of the Act defines "commercial air service" as "any use of aircraft for hire or reward" and this same section defines "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".

[51] Thus, if the Tribunal concludes that the applicant was using the aircraft for hire or reward resulting in the dispersal of products without an AOC, there would be a contravention of paragraph 700.02(2)(d) of the CARs.

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

[53] After evaluating the pertinent evidence, the Tribunal concludes that the applicant cannot be considered as a farmer, as defined by section 700.01 of the CARs, due to the fact that the applicant's primary source of income is not derived from the tillage of the soil, the raising of livestock or poultry, dairy farming, the growing of grain, fruit, vegetables or tobacco, or any other operation of a similar nature. Indeed, the Saskatchewan Corporate Registry lists crop spraying as the nature of the applicant's business. In addition, there is no evidence that the applicant owns a farm. The exception provided in subsection 700.02(3) of the CARs would not have been applicable.

[54] To establish a contravention of paragraph 700.02(2)(d) of the CARs, the Minister must prove the following elements:

  • the applicant, Rubbert Aerial Spraying, does not hold an AOC;
  • the applicant, Rubbert Aerial Spraying, conducted aerial work involving the dispersal of products.

[55] The secretary certificate (exhibit M‑31) leads the Tribunal to conclude that the applicant did not hold an AOC during the period of the alleged contraventions of paragraph 700.02(2)(d) of the CARs.

[56] The next step is assessing the evidence regarding the alleged contraventions to determine if the Minister has proven that the alleged aerial work took place. In making this determination, the pilot acre report and the invoice sent to Wendland Ag Services and the pilot acre report and the invoice sent to Fly-On Ag Services lead the Tribunal to conclude that the applicant used the services of at least three pilots during the course of its business in the present matter, namely Messrs. Rubbert, Blerot and Monteyne. These documents are business documents produced and used by the applicant in the ordinary course of its business and thus, admissible as evidence in proving these facts.

(a) Counts 1 to 22

[57] The aerial work order forms (exhibits M‑36, M‑37 and M‑40 to M‑59) are business documents produced and used by the applicant in the ordinary course of its business and thus, admissible as evidence in proving these allegations. These documents include information relating to the dispersal of products by the applicant and the amount charged for these services.

[58] These documents prove, to the Tribunal's satisfaction, that the applicant conducted aerial work, namely the dispersal of products, as alleged by the Minister in the notice of assessment of monetary penalty. On this basis, the Tribunal concludes that the Minister has proven, on the balance of probabilities, that the applicant conducted aerial work without holding an AOC and thus, contravened paragraph 700.02(2)(d) of the CARs, in counts 1 to 22.

(b) Counts 23 to 26

[59] The aerial work order forms produced as exhibits M-60 to M‑63 are business documents produced and used by the applicant in the ordinary course of its business and thus, admissible as evidence in proving these allegations. These documents include information relating to the dispersal of products by the applicant and the amount charged for these services.

[60] The pilot acre report and the invoice sent to Wendland Ag Service (exhibit M‑27) are also business documents produced and used by the applicant in the ordinary course of its business and thus, admissible as evidence in proving these allegations. These documents clearly specify the fact that dispersal of products was done by the applicant.

[61] In addition, the aerial application worksheets from Wendland Ag Services (exhibits M‑23 to M‑26) and the testimony of Mr. Gaudet, establish the fact that this work was done by the applicant. The fact that a cheque (exhibit M‑68) was made to the applicant following the reception of his invoice (exhibit M‑27) proves that the applicant received compensation for its services.

[62] These documents and the testimony of Mr. Gaudet prove to the Tribunal's satisfaction that the applicant conducted aerial work, namely the dispersal of products, as alleged by the Minister in the notice of assessment of monetary penalty.

[63] On this basis, the Tribunal concludes that the Minister has proven, on the balance of probabilities, that the applicant conducted aerial work without holding an AOC and thus, contravened paragraph 700.02(2)(d) of the CARs, as alleged in counts 23 to 26.

(c) Counts 27 to 40

[64] The custom application field order forms produced as exhibits M‑6 to M‑19 are business documents produced and used by Fly-On Ag Services in the ordinary course of its business. Mr. Silzer testified that it was an accurate reflection of the work done by the applicant. This document includes information relating to the dispersal of products by the applicant.

[65] The pilot acre report and the invoice sent to Fly-On Ag Services (exhibit M‑3) are business documents produced and used by the applicant in the ordinary course of its business and thus, admissible as evidence in proving these allegations. These documents clearly specify the fact that dispersal of products was done by the applicant.

[66] In addition, the testimony of Mr. Silzer confirms the fact that the applicant was paid for this aerial work by a cheque (exhibit M‑4), which was made to the applicant following the reception of his invoice.

[67] These documents and the testimony of Mr. Silzer prove to the Tribunal's satisfaction that the applicant conducted aerial work, namely the dispersal of products, as alleged by the Minister in the notice of assessment of monetary penalty.

[68] On this basis, the Tribunal concludes that the Minister has proven, on the balance of probabilities, that the applicant conducted aerial work without holding an AOC and thus, contravened paragraph 700.02(2)(d) of the CARs, as alleged in counts 27 to 40.

(d) Counts 41 to 43

[69] The pilot acre report and the invoice sent to Fly-On Ag Services (exhibit M‑3) are business documents produced and used by the applicant in the ordinary course of its business and thus, admissible as evidence in proving these allegations. These documents clearly specify the fact that dispersal of products was done by the applicant.

[70] In addition, the testimony of Mr. Silzer confirms the fact that the applicant was paid for this aerial work by a cheque (exhibit M‑4) which was made to the applicant following the reception of his invoice.

[71] These documents and the testimony of Mr. Silzer prove to the Tribunal's satisfaction that the applicant conducted aerial work, namely the dispersal of products, as alleged by the Minister in the notice of assessment of monetary penalty.

[72] On this basis, the Tribunal concludes that the Minister has proven, on the balance of probabilities, that the applicant conducted aerial work without holding an AOC and thus, contravened paragraph 700.02(2)(d) of the CARs, as alleged in counts 41 to 43.

(e) Count 44

[73] The aerial work order form produced as exhibit M‑64 is a business document produced and used by the applicant in the ordinary course of its business and thus, admissible as evidence in proving this allegation. This document includes information relating to the dispersal of products by the applicant and the amount charged for these services.

[74] This document proves to the Tribunal's satisfaction that the applicant conducted aerial work, namely the dispersal of products, as alleged by the Minister in the notice of assessment of monetary penalty.

[75] On this basis, the Tribunal concludes that the Minister has proven, on the balance of probabilities, that the applicant conducted aerial work without holding an AOC and thus, contravened paragraph 700.02(2)(d) of the CARs, as alleged in count 44.

(2) Subsection 605.94(1) of the CARs — Count 45

[76] With respect to the alleged contravention by Rubbert Aerial Spraying, the evidence, in the present matter, proves that aircraft C‑FHNZ made numerous flights between May 31 and August 27, 2006. The applicant clearly omitted to enter in the journey logbook the air time of each flight or series of flights and cumulative total air time daily, as stipulated in subsection 605.94(1) of the CARs (exhibit M‑30).

[77] The Tribunal concludes that the applicant was the person responsible for making these entries as he had control of the aircraft during this period, and that the Minister has proven, on the balance of probabilities, that the applicant contravened subsection 605.94(1) of the CARs.

B. Lorin Edgar Rubbert (File No. C-3336-33)

[78] To render a determination regarding the contravention of subsection 401.03(1) of the CARs by Mr. Rubbert, it is necessary to examine the applicable legislative provisions and determine if the minister has proven the essential elements of the contravention on the balance of probabilities.

[79] The Minister must prove the following elements:

  • The applicant, Lorin Edgar Rubbert, did not hold a commercial pilot licence; and
  • The applicant, Lorin Edgar Rubbert, acted as a pilot-in-command of an aircraft for hire or reward.

[80] The Transport Canada database excerpt (exhibit M‑66) indicates that the applicant held a private pilot licence and that he did not hold a commercial pilot licence at the time of the alleged contravention. The Tribunal concludes that the applicant did not hold a commercial pilot licence during the period when the alleged contravention took place.

[81] The Minister has submitted that the applicant acted as pilot‑in‑command of an aircraft for hire or reward on various multiple occasions between May 31 and August 28, 2006.

[82] After analyzing the documentary evidence, and in particular the pilot acre report (exhibit M‑3), as well as the testimony of Mr. Silzer, the Tribunal concludes that the evidence presented proves that the applicant acted as the pilot‑in‑command with respect to aerial work done for different clients.

[83] The final step is to determine if the applicant, Lorin Edgar Rubbert, acted for hire or reward during the rendering of these services. Subsection 3(1) of the Act defines "commercial air service" as "any use of aircraft for hire or reward" and defines "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".

[84] To correctly determine if the applicant acted for hire or reward, it is necessary to clearly define the corporate structure of Rubbert Aerial Spraying. The excerpt from the Saskatchewan Corporate Registry (exhibit M-67) indicates that Rubbert Aerial Spraying has a single shareholder, Mr. Rubbert, and that he and Lorna Rubbert are the two directors of the corporation.

[85] The Tribunal refers to the decision Billings Family Enterprises Ltd. v. Canada (Minister of Transport), [2006], TATC file no. P-3114-41 (appeal), which deals with the notion of hire or reward when more than one entity is involved:

[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.

[86] It is vital to note that aircraft C-FHNZ, used by Rubbert Aerial Spraying during these operations, is the property of the applicant (exhibit M‑38). The evidence, in the present file, is that Rubbert Aerial Spraying Inc. was compensated by Wendland Ag Services (exhibit M‑68) and by Fly-On Ag Services (exhibit M‑4) for the aerial spraying work done by the applicant.

[87] Similarly to what the Tribunal stated in the Billings decision, to suggest that the applicant piloted his own aircraft for the benefit of Rubbert Aerial Spraying, a corporation of which he is the sole shareholder, without receiving some type of benefit, is simply not believable. The Tribunal concludes that the applicant acted for hire or reward when he acted as pilot-in-command of his aircraft during the aerial spraying operations conducted by Rubbert Aerial Spraying.

[88] The Minister has proven, on the balance of probabilities, that the applicant acted as the pilot‑in‑command of an aircraft for hire or reward while he did not hold a commercial pilot licence. The Tribunal concludes that in doing so, the applicant contravened paragraph 401.03(1)(a) of the CARs.

VI. SANCTION

  1. A. Rubbert Aerial Spraying (TATC file no. C-3335-41)

[89] The Tribunal considers that the issuance of an AOC is a fundamental requirement by the Minister to ensure that commercial operations are carried out in a manner that is safe for the pilots, clients and the general public.

[90] The directory of the Saskatchewan Aerial Applicators Association (exhibit M-69) and the directory of the Canadian Aerial Applicators Association (exhibit M-70) indicate that Mr. Rubbert is a member of these associations. In addition, Mr. Yaholnitsky testified that Mr. Rubbert was a member of the Saskatchewan Aerial Applicators Association. This leads the Tribunal to conclude that Mr. Rubbert should have been aware of the necessity of holding an AOC to carry out his operations.

[91] The Tribunal cannot help but note that in the directory of the Canadian Aerial Applicators Association, Mr. Rubbert is listed as a flying farmer and a commercial operator, indicating quite clearly that he is aware that there is a distinction between these two types of operation.

[92] Mr. Rubbert operated his business and conducted aerial work without holding an AOC showing a blatant disregard for the applicable legislation. For this motive, there is no reason to interfere with the Minister's original assessment of $5 000 per count for a total monetary penalty of $220 000.

[93] The same principle applies to count 45, being the contravention of subsection 605.94(1) of the CARs. The accurate entry in an aircraft journey log is a most fundamental requirement that every pilot and aerial operator is aware of.

[94] The failure to maintain an up-to-date log book is a serious offence, which puts the safety of the pilots and the general public at risk. It is another example of complete disregard for the applicable legislation. Thus, there is no reason to interfere with the Minister's original assessment of $7 500.

B. Lorin Edgar Rubbert (TATC file no. C-3336-33)

[95] The Tribunal considers that holding a commercial pilot licence before acting as pilot‑in‑command of an aircraft for hire or reward is a fundamental requirement that the Minister imposes in order to ensure that the operation of commercial aircraft is carried out in a manner that is safe for pilots, clients and the general public.

[96] Despite the fact that the Minister has proven, on the balance of probabilities, various occasions where the applicant was in contravention of paragraph 401.03(1)(a) of the CARs and that a separate penalty for each occurrence could be assessed, the decision was made to proceed with an assessment on only one occurrence. There is no reason to interfere with the Minister's original assessment of $5 000.

VII. DETERMINATION

A. Rubbert Aerial Spraying Inc. (File No. C-3335-41)

[97] The Minister of Transport has proven, on a balance of probabilities, that the applicant has contravened paragraph 700.02(1)(d) and subsection 605.94(1) of the CARs. The assessed monetary penalties of $220 000 and 7 500 for a total amount of $227 500 are upheld.

B. Lorin Edgar Rubbert (File No. C-3336-33)

[98] The Minister of Transport has proven, on a balance of probabilities, that the applicant has contravened paragraph 401.03(1)(a) of the CARs. The assessed monetary penalty of $5 000 is upheld.

November 6, 2009

Howard M. Bruce

Member