Decisions

TATC File No. W-3581-33
MoT File No. SAP-5504-67514 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Blair William Jensen, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, s 202.26, para. 602.86(1)(b), 605.03(1)(c), ss 605.04(1), 605.95(1)


Review Determination
Richard F. Willems


Decision: June 28, 2010

Citation: Jensen v. Canada (Minister of Transport), 2010 TATCE 16 (review)

Heard at Saskatoon, Saskatchewan, on March 17, 2010

Held:

Counts 1, 3, 4 and 5 ─ The Minister of Transport has proven, on the balance of probabilities, that the Applicant contravened section 202.26, paragraph 605.03(1)(c) and subsections 605.04(1) and 605.95(1) of the Canadian Aviation Regulations. However, I reduce each penalty from $400 to $300 each for a total of $1 200.

Count 2 ─ The Minister of Transport has not proven, on the balance of probabilities, that the Applicant has contravened paragraph 602.86(1)(b) of the Canadian Aviation Regulations. Consequently, the assessed monetary penalty of $1 000 is cancelled.

The total amount of $1 200 is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within thirty-five (35) days of service of this Determination.

File Nos: W-3580-37

W-3581-33

I. BACKGROUND

A. File No. W-3580-37 (Ursus Aviation)

[1] On February 23, 2009, the Minister of Transport assessed four monetary penalties for a total of $9 500 against the Applicant, 102643 Aviation Ltd. d.b.a. Ursus Aviation, for contraventions of section 202.26, paragraphs 602.86(1)(b) and 605.03(1)(c) and subsection 605.95(1) of the Canadian Aviation Regulations ("CARs"), pursuant to section 7.7 of the Aeronautics Act ("Act"). Schedule A of the Notice of Assessment of Monetary Penalty (Notice) states the following:

#1 - CARs 202.26 VICARIOUS LIABILITY Section 8.4(1) Aeronautics Act

On or about the 19th day of July 2008, at or near Yellowknife, Northwest Territories, you did operate an aircraft, to wit a Piper PA-31, Canadian registration C-CJTE, when the certificate of registration issued in respect of the said aircraft was not carried on board the aircraft, thereby contravening section 202.26 of the Canadian Aviation Regulations.

MONETARY PENALTY - $1,500.00

#2 - CARs 602.86(1)(b) VICARIOUS LIABILITY Section 8.4(1) Aeronautics Act

On or about the 19th day of July 2008, at or near Yellowknife, Northwest Territories, you did operate an aircraft, to wit a Piper PA-31, Canadian registration C-GJTE, with carry on baggage on board, when the carry on baggage was not restrained so as to prevent it from shifting during movement of the aircraft on the surface and during takeoff, landing and in flight turbulence, thereby contravening section 602.86(1)(b) of the Canadian Aviation Regulations.

MONETARY PENALTY - $5,000.00

#3 - CARs 605.03(1)(c) VICARIOUS LIABILITY Section 8.4(1) Aeronautics Act

On or about the 19th day of July 2008, at or near Yellowknife, Northwest Territories, you did operate an aircraft, to wit a Piper PA-31, Canadian registration C-GJTE, in flight when the flight authority was not carried on board, thereby contravening section 605.03(1)(c) of the Canadian Aviation Regulations.

MONETARY PENALTY - $1,500.00

#4 - CARs 605.95(1) VICARIOUS LIABILITY Section 8.4(1) Aeronautics Act

On or about the 19th day of July 2008, at or near Yellowknife, Northwest Territories, you did conduct a take-off in an aircraft, to wit a Piper PA-31, Canadian registration C-GJTE, when the journey log was not on board, thereby contravening section 605.95(1) of the Canadian Aviation Regulations.

MONETARY PENALTY - $1,500.00

TOTAL MONETARY PENALTY - $9,500.00

[2] On March 26, 2009, the Applicant requested that the Transportation Appeal Tribunal of Canada ("Tribunal") review the alleged contraventions.

B. File No. W-3581-33 (Blair William Jensen)

[3] On February 23, 2009, the Minister of Transport assessed five monetary penalties for a total of $2 600 against the Applicant, Blair William Jensen, for contraventions of section 202.26, paragraphs 602.86(1)(b) and 605.03(1)(c) and subsections 605.04(1) and 605.95(1) of the CARs, pursuant to section 7.7 of the Act. Schedule A of the Notice states the following:

#1 - CARs 202.26

On or about the 19th day of July 2008, at or near Yellowknife, Northwest Territories, you did operate an aircraft, to wit a Piper PA-31, Canadian registration C-GJTE, when the certificate of registration issued in respect of the said aircraft was not carried on board the aircraft, thereby contravening section 202.26 of the Canadian Aviation Regulations.

MONETARY PENALTY - $400.00

#2 - CARs 602.86(1)(b)

On or about the 19th day of July 2008, at or near Yellowknife, Northwest Territories, you did operate an aircraft, to wit a Piper PA-31, Canadian registration C-GJTE, with carry on baggage on board, when the carry on baggage was not restrained so as to prevent it from shifting during movement of the aircraft on the surface and during take-off, landing and in flight turbulence, thereby contravening section 602.86(1) of the Canadian Aviation Regulations.

MONETARY PENALTY - $1,000.00

#3 - CARs 605.03(1)(c)

On or about the 19th day of July 2008, at or near Yellowknife, Northwest Territories, you did operate an aircraft, to wit a Piper PA-31, Canadian registration C-GJTE, in flight when the flight authority was not carried on board, thereby contravening section 605.03(1)(c) of the Canadian Aviation Regulations.

MONETARY PENALTY - $400.00

#4 - CARs 605.04(1)

On or about the 19th day of July 2008, at or near Yellowknife, Northwest Territories, you did conduct a take-off in an aircraft, to wit a Piper PA-31, Canadian registration C-GJTE, for which an aircraft operating manual was required when the said aircraft operating manual was not available to the flight crew member, thereby contravening section 605.04(1) of the Canadian Aviation Regulations.

MONETARY PENALTY - $400.00

#5 - CARs - 605.95(1)

On or about the 19th day of July 2008, at or near Yellowknife, Northwest Territories, you did conduct a take-off in an aircraft, to wit a Piper PA-31, Canadian registration C-GJTE, when the journey log was not on board, thereby contravening section 605.95(1) of the Canadian Aviation Regulations.

MONETARY PENALTY - $400.00

TOTAL MONETARY PENALTY - $2,600.00

[4] On March 26, 2009, the Applicant requested that the Tribunal review the alleged contraventions.

II. STATUTES, REGULATIONS AND POLICIES

[5] Subsection 8.4(1) of the Act provides as follows:

8.4 (1) The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

[6] Section 202.26, paragraphs 602.86(1)(b) and 605.03(1)(c) and subsections 605.04(1) and 605.95(1) of the CARs provide as follows:

202.26 No person shall operate an aircraft in Canada, other than an aircraft referred to in subsection 202.43(1), or a Canadian aircraft outside Canada unless the certificate of registration issued in respect of the aircraft is carried on board the aircraft.

602.86 (1) No person shall operate an aircraft with carry-on baggage, equipment or cargo on board, unless the carry-on baggage, equipment and cargo are

. . .

(b) restrained so as to prevent them from shifting during movement of the aircraft on the surface and during take-off, landing and in-flight turbulence.

605.03 (1) No person shall operate an aircraft in flight unless

. . .

(c) subject to subsections (2) and (3), the flight authority is carried on board the aircraft.

605.04 (1) No person shall conduct a take-off in an aircraft for which an aircraft flight manual is required by the applicable standards of airworthiness, unless the aircraft flight manual or, where established under section 604.27 or Part VII, the aircraft operating manual is available to the flight crew members at their duty stations.

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

III. EVIDENCE

A. Minister of Transport

(1) Mark Fraser

[7] Mark Fraser is a Civil Aviation Inspector with Transport Canada, working for the Enforcement Branch in Edmonton, Alberta.

[8] On July 19, 2008, Inspectors Fraser, Guy Duhoux and Kim Brown were in Yellowknife, Northwest Territories, on other investigations. They observed Mr. Jensen's aircraft, registered as C-GJTE, taxiing to the ramp at the Ursus Aviation's hangar and shutting down. Mr. Jensen was operating the aircraft.

[9] Inspector Fraser believed that seven passengers had deplaned. He further testified that he and the other two Inspectors had noticed that cargo in the back of the aircraft was not secured. After the passengers had deplaned and all the baggage had been removed, Mr. Jensen was asked by Inspector Duhoux if it would be possible to do a ramp inspection, to which Mr. Jensen agreed. Mr. Jensen then went to the hangar. Shortly after, a woman came out of the hangar with books in her hand. She told the Inspectors that she needed to board the aircraft to clean it. She was informed that she was not allowed on the aircraft at that time because of the Transport Canada ramp inspection in progress. When Mr. Jensen arrived back at the aircraft, the woman handed him the books she was carrying. In turn, Mr. Jensen gave them to Inspector Duhoux, indicating that they were the documents for the aircraft under inspection.

[10] Inspector Fraser recalled his observations with regards to the baggage in the back of the aircraft. As the aircraft was taxiing in, he could see cargo through the window, but could not see restraint of any kind. He confirmed that once the door was opened and he was able to see into the cargo area, no netting or cargo straps of any kind were being used to restrain the baggage.

[11] Inspector Fraser agreed that there might have been restraints on board, but that they were not being used at the time. Later in his testimony, he stated that he could not recall exactly the seating and door configuration in the Piper PA‑31 Navajo.

(2) Guy Duhoux

[12] Inspector Duhoux is also working with Transport Canada, for the Enforcement Branch in Edmonton.

[13] He testified that, while the Piper PA-31 Navajo was parking and the engines being shut down, he could see through the rear window that cargo and baggage were piled up to the top of the aircraft. At that point, he took a closer look and realized that he could not see a cargo net, and that nothing was tied down.

[14] Inspector Duhoux greeted Mr. Jensen at the aircraft's door. As he was the pilot, Mr. Jensen opened the door for everyone to exit. At that time, Inspector Duhoux had a better look inside the aircraft, and again observed that none of the cargo and baggage was secured. Inspector Duhoux did not see Mr. Jensen carrying anything while he exited the aircraft. He advised Mr. Jensen that he would like to do a ramp inspection of the aircraft. Mr. Jensen courteously agreed but advised the Inspector that he needed to go to the hangar first.

[15] A few minutes later, a lady arrived with cleaning supplies and some books under her left arm. When Mr. Jensen arrived back at the aircraft, she handed the books to him. In turn, Mr. Jensen gave them to Inspector Duhoux, and at that time, he admitted that these documents had not been on board for the flight. Mr. Jensen was asked to produce his pilot's licence and his medical certificate, and he did. He was advised, at that time, that contraventions had occurred. Upon request, Mr. Jensen provided copies of the aircraft journey log book and the receipt book, which reflected the previous flights billed to customers.

B. Applicant

(1) Blair William Jensen

[16] Mr. Jensen was the pilot of the aircraft involved in the incident under review. He admitted that he did not have all the required documents on board the aircraft that day. He had his flight bag with him, and for some reasons unknown to him, the journey log book with the documents in it had been removed.

[17] Mr. Jensen testified about the baggage issue, whether it was secured, and the type of restraint system in the aircraft. He described the standard Piper cargo restraints, which were installed by the manufacturer. The restraints consist of four straps, with one being attached in each corner of the baggage compartment. These straps can be placed in front of or across the top of the cargo or baggage in that compartment. Mr. Jensen disputed the statements of Inspectors Fraser and Duhoux that they could see into the cargo area from behind the wing, outside the aircraft door opened or closed.

[18] Mr. Jensen's drawing of the floor plan of the Piper A-31 Navajo that he was flying that day was filed in evidence (Exhibit A-1). Mr. Jensen explained that the two back seats have a four-inch opening between them and that the outer edge of each seat fits close to the side wall of the cabin. These seats are situated directly in front of the area in which the cargo or baggage was stored for this flight.

[19] Mr. Jensen testified that after the aircraft was parked, he went to the back of the aircraft, released the straps, and then opened the door and exited the aircraft.

IV. EVIDENCE, LEGISLATION AND POLICY ANALYSIS

[20] Mr. Jensen did not dispute the fact that he did not have the required documents on board. He disputed whether the cargo and baggage were properly secured for the flight.

[21] Inspectors Fraser and Duhoux testified that they did not see any type of restraint being used as they approached the aircraft once it had parked, looking through the back oval and door windows. Once Mr. Jensen had opened the door, the Inspectors could see into the cargo area, but still could not see any means of cargo restraint being used.

[22] Mr. Jensen testified that he had placed the straps around the front of the load to keep it from moving forward. He took issue with the Inspectors' statements concerning their ability to see into the cargo area from a position in the doorway, being that the rear seats restricted the visibility into the cargo area, except for a four-inch opening between them. He also indicated that, after shutting down the engine of the aircraft, he moved to the rear of the aircraft, and prior to opening the door, released the strap that he had placed in front of the cargo.

[23] Inspector Duhoux stated that he did not see Mr. Jensen touch the cargo, and that in his opinion nobody had time to untie the cargo.

[24] I am not convinced that with people sitting in the back seats, the Inspectors could have seen exactly what the pilot was doing prior to opening the door. It would have been very congested in that area. Mr. Jensen indicated that he put the strap around the front of the load to keep it from moving forward, and that made it easier for him to release. It would also have made the strap more difficult to see through the back oval window, and probably impossible to see through the door window with passengers sitting in those seats prior to opening the door.

[25] The Inspectors seemed unsure at times as to the seating and door configuration and the restraint system of the aircraft. The Minister does not contest Mr. Jensen's drawing and measurements of the aft cabin and baggage area. Inspector Duhoux stated that after the passengers had deplaned, he checked the aircraft and found only one strap in the cargo area. Mr. Jensen's drawing shows four individual straps, that when fastened would form two restraints.

[26] Inspectors Fraser and Duhoux could not exactly recall the restraint system and the seating and door configuration of the aircraft. Furthermore, the Minister did not produce, at this Review Hearing, any documentary evidence to support the Inspectors' testimonies.

[27] Mr. Jensen testified that the aircraft has the standard Piper cargo restraints, with which the aircraft was certified.

[28] Basic as it may be, Mr. Jensen's drawing is the only documentary evidence in front of me, as to the configuration of the aircraft. At no point did I hear the Minister argue that, if used, these restraints are inadequate for the intended purpose. Consequently, the Minister has failed to prove, on the balance of probabilities, that the restraints on the aircraft were not used in flight.

[29] Concerning the failure to carry the proper documentation on board the aircraft for flight, Mr. Jensen admitted that it was not on board. He argued that because he owns the company and was the pilot-in-command for the flight in question, he was penalized twice for the same mistake. Pursuant to subsections 8.4(1) and (3) of the Act, the pilot and the operator are two separate entities, allowing Transport Canada to impose penalties to both. Double jeopardy does not apply, the fact being that two different persons in legal terms are being penalized for the same offence.

[30] An excerpt from the National Air Carrier Identification System shows all the responsibilities of Mr. Jensen at Ursus Aviation (Exhibit M‑3). He is not only the accountable executive but also the chief pilot and the person responsible for maintenance. As the manager and the pilot-in-command, he should have a system in place to ensure that proper documentation is in place for all flights done by Ursus Aviation. I agree with Transport Canada's procedure of issuing penalties to the pilot-in-command and the company to ensure compliance of the CARs.

[31] Mr. Jensen testified that the company has, since this ramp inspection, put in more safeguards to ensure that this issue does not reoccur.

[32] Given the fact that Ursus Aviation is not a major air carrier, I find that the same result could be achieved with a lesser amount of penalty. Since Mr. Jensen will be paying the total amount, I will also reduce the penalties against him.

V. DETERMINATION

A. File No. W-3580-37 (Ursus Aviation)

[33] Counts 1, 3 and 4 ─ The Minister of Transport has proven, on the balance of probabilities, that the Applicant contravened section 202.26, paragraph 605.03(1)(c) and subsection 605.95(1) of the Canadian Aviation Regulations. However, I reduce each penalty from $1 500 to $1 000, for a total of $3 000.

[34] Count 2 ─ The Minister of Transport has not proven, on the balance of probabilities, that the Applicant has contravened paragraph 602.86(1)(b) of the Canadian Aviation Regulations. Consequently, the assessed monetary penalty of $5 000 is cancelled.

B. File No. W-3581-33( Blair William Jensen)

[35] Counts 1, 3, 4 and 5 ─ The Minister of Transport has proven, on the balance of probabilities, that the Applicant contravened section 202.26, paragraph 605.03(1)(c) and subsections 604.04(1) and 605.95(1) of the Canadian Aviation Regulations. However, I reduce each penalty from $400 to $300 each, for a total of $1 200.

[36] Count 2 ─ The Minister of Transport has not proven, on the balance of probabilities, that the Applicant has contravened paragraph 602.86(1)(b) of the Canadian Aviation Regulations. Consequently, the assessed monetary penalty of $1 000 is cancelled.

June 28, 2010

Richard F. Willems

Member