Decisions

TATC File No. P-3739-02
MoT File No. EMS 72163

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Steven Diego Genn, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96 433; ss 401.03(1)


Review Determination
Stephen Rogers


Decision: June 20, 2011

Citation: Genn v. Canada (Minister of Transport), 2011 TATCE 15 (Review)

Heard at Kamloops, British Columbia on April 6, 2011

Held: The Minister of Transport did prove, on a balance of probabilities, that the Applicant, Steven Diego Genn, contravened two counts of subsection 401.03(1) of the Canadian Aviation Regulations. However, on Count 1, due to mitigating circumstances, the suspension of 14 days is reduced to 1 day. On Count 2, the suspension of 14 days is upheld. The total suspension of 15 days will commence on the 35th day following service of this Review Determination.

I. BACKGROUND

[1] The Applicant, Steven Diego Genn, is a private pilot and owner of a Cessna 172H aircraft, registration marks C-FVZI. In the Notice of Suspension issued on November 8, 2010, the Minister of Transport ("Minister") alleged that the Applicant:

Charge 1:

On or about July 11, 2010 at approximately 15:52, at or near Salmon Arm, BC you acted as a flight crew member or exercised the privileges of a flight crew permit, licence or rating when you did not hold, or could not produce while so acting, the appropriate permit, licence or rating; thereby contravening subsection 401.03(1) of the Canadian Aviation Regulations.

License Suspension Assessed for Charge 1: 14 days

Charge 2:

On or about July 11, 2010, at approximately 15:52 at or near Salmon Arm you acted as a flight crew member or exercised the privileges of a flight crew permit, licence or rating when you did not hold a valid and appropriate medical certificate, thereby contravening subsection 401.03(1) of the Canadian Aviation Regulations.

License Suspension Assessed for Charge 2: 14 days

Total License Suspension Assessed: 28 days

II. STATUTES AND REGULATIONS

[2] Subsection 401.03(1) of the Canadian Aviation Regulations ("CARs") provides as follows:

401.03(1) Subject to subsection (2), no person shall act as a flight crew member or exercise the privileges of a flight crew permit, licence or rating unless

 (a) the person holds the appropriate permit, licence or rating;

 (b) the permit, licence or rating is valid;

(c) the person holds the appropriate medical certificate; and

(d) the person can produce the permit, licence or rating, and the certificate, when exercising those privileges.

III. EVIDENCE

A. Minister of Transport

(1) Claudio Bulfone

[3] Claudio Bulfone is an Inspector with Transport Canada. He works with the Civil Aviation Enforcement Branch as well as the Aerodrome Safety Division. On July 11, 2010, Inspector Bulfone and his colleague, Inspector Claudio Rosa, observed a Cessna aircraft land at Salmon Arm Airport. The aircraft proceeded to the hangar, and Mr. Genn and two children came out. At that time, Inspector Bulfone approached Mr. Genn for a routine random inspection. Mr. Genn was asked to provide his pilot licence, Certificate of Registration, and Certificate of Airworthiness. Mr. Genn complied and provided the documents. Inspector Bulfone noted that Mr. Genn had the old paper licence which Transport Canada had discontinued. These licences expired on June 30, 2010, according to the Table appended to section 401.12 of the CARs.

[4] Secondly, Inspector Bulfone noted that Mr. Genn's medical certificate had also expired. Mr. Genn at first claimed it was valid for five years since he was less than 40 years old at the time of his last medical examination. However, upon examining Transport Canada files and receiving confirmation from Ottawa, Inspector Bulfone determined that the medical certificate had expired. According to Transport Canada's records, Mr. Genn had no valid medical certificate from March 2, 2010 to July 26, 2010 inclusive (Exhibit M‑7).

[5] On September 8, 2010, Mr. Genn had a conversation with Inspector Bulfone in which he told him that he had a spotless pilot record. He was embarrassed about the situation. Mr. Genn explained that he was never notified that his licence had expired. Mr. Genn told Inspector Bulfone that the only legal way of invalidating his licence was to notify Mr. Genn. There was also discussion about the expiry of the medical certificate. There was confusion as to whether the medical certificate expired after five years or two years. Mr. Genn also told Inspector Bulfone that it was difficult to navigate Transport Canada's website and that he had a lot of trouble getting someone on the telephone. Mr. Genn felt he did everything reasonable that he could to get a word about his licence. Mr. Genn claimed that he contacted Transport Canada in the past and was told that it was not the time to be renewing his licence as they were processing commercial pilots first.

[6] On cross-examination, Inspector Bulfone testified that there was no expiry date on Mr. Genn's licence or licences in general. Inspector Bulfone testified that the way to renew it was to obtain a new licence booklet, in accordance with the CARs. Inspector Bulfone was asked whether Transport Canada sent notifications to pilots about the upcoming expiry dates of their licences. Inspector Bulfone testified that he is not aware of letters that went out to individual pilots, but that he believes there was a notice published in the Canadian Owners and Pilots Association newsletter. He also testified that representatives from Transport Canada went around and did presentations to various flying clubs. Inspector Bulfone testified that it was also on the website.

B. Applicant

(1) Steven Diego Genn

[7] Mr. Genn testified that he had a spotless aviation record and that he believed his pilot licence was valid on July 11, 2010 when he was stopped. He testified that there was no expiry date on his licence. Mr. Genn testified that sometime in 2007 or 2008 he may have read in the paper that Transport Canada intended to bring in new pilot licences for security reasons. Mr. Genn testified that he contacted Transport Canada's licensing branch to ask how to apply for a licence. The individual on the phone told him that there were too many licences to produce all at the same time and that commercial pilot licences were being given priority. Mr. Genn testified that this Transport Canada representative told him that after they were done processing commercial pilot licences, he could apply.

[8] Mr. Genn also testified that he felt by calling he had done his due diligence and awaited notification about when he could apply to renew his private pilot licence. He stated that he never heard back from Transport Canada until July 11, 2010, when he was stopped by Inspectors Bulfone and Rosa. Mr. Genn testified that he believed he had a legal right to be notified of the invalidation of his licence, given that there was no expiry date on his licence.

[9] On cross-examination, Mr. Genn testified that he could not remember the name of the Transport Canada individual he spoke to on the phone. Mr. Genn also testified that he belonged to a flying club and that he attended meetings twice a month. However, Mr. Genn stated that Transport Canada could not expect him to learn of the expiration of his licence through his involvement with the flying club.

IV. ARGUMENTS

A. Minister of Transport

[10] The Minister argues that all elements of subsection 401.03(1) have been proven. First, on July 11, 2010, Mr. Genn was the pilot and did not possess a valid licence. Second, Mr. Genn did not possess a valid medical certificate.

[11] The Minister submits that Inspector Bulfone witnessed a Cessna 172 bearing Canadian registration marks C‑FVZI land at Salmon Arm Airport. Inspector Bulfone testified that Mr. Genn was unable to provide a valid licence. Furthermore, Inspector Bulfone testified that he searched the Transport Canada database which showed that Mr. Genn's medical certificate had expired.

[12] Based on all the evidence, the Minister argues that the Transportation Appeal Tribunal of Canada ("Tribunal") should find Mr. Genn guilty. Furthermore, the Minister submits that should the Review Member find Mr. Genn guilty, the suspension of 28 days should be upheld. To that end, the Minister submits that in accordance with Canada (Minister of Transport) v. Wyer, 1988 CAT file no. O-0075-33 (appeal), the principles of denunciation, deterrence and rehabilitation
are met by the 28-day suspension. The Minister submits that Inspector Bulfone took into consideration all the factors outlined in the Wyer case when making his decision.

B. Applicant

[13] The Applicant submits that he always believed he held a valid licence. There was no expiry date on the actual licence. The Applicant submits that he did everything reasonable to make inquiries about obtaining a new licence, and exercised due diligence to comply with the Regulations. Furthermore, the Applicant submits that he did not hear anything about Transport Canada visiting and making presentations at flying clubs about the new licences. The Applicant submits that he attends the flying club events on a regular basis, although not all of them. The Applicant submits that he also asked other pilots after receiving his Notice of Suspension to see whether they knew their licences had expired. None of the other pilots were in compliance either, including the President of the Club, despite his meticulous attention to paperwork. The Applicant submits that it simply was not common knowledge among the private pilots that the licences had expired.

[14] The Applicant submits that the Minister suggested that they were being lenient by not examining whether he had any other flights with the expired licence. The Applicant argues that cannot be used against him as there was no evidence he had made any other flights.

[15] The Applicant submits that based on all the evidence before the Tribunal, the Minister had not proven the case against him. The Applicant argues that the CARs do not show that anybody who had been issued a licence previously would be flying with an invalid licence. The Regulations do not indicate that they render existing licences invalid.

[16] With regard to sanction, the Applicant submits that suspending his licence is a serious penalty that should be reserved for pilots who endanger the public, for example, the analogy of drunk motor vehicle drivers. In this case, the Applicant submits that he should not have had his licence suspended.

V. ANALYSIS

A. Count 1

[17] Licences such as the one Mr. Genn held are subject to expiration in accordance with subsection 401.12(5), which states the following:

401.12(5) A flight crew permit or licence that was not issued in the form of a booklet label and is listed in column 1 of the table this subsection is valid until the day set out in column 2.

TABLE

Item

Column 1
Flight Crew Permit or Licence

Column 2
Expiry Date

1.

Airline transport pilot licence - aeroplane

June 30, 2010

2.

Airline transport pilot licence - helicopter

June 30, 2010

3.

Commercial pilot licence - aeroplane

June 30, 2010

4.

Commercial pilot licence - helicopter

June 30, 2010

5.

Private pilot licence - aeroplane

June 30, 2010

6.

Private pilot licence - helicopter

June 30, 2010

7.

Flight engineer licence

June 30, 2010

8.

Pilot licence - glider

December 31, 2010

9.

Pilot licence - balloon

December 31, 2010

10.

Pilot permit - recreational

December 31, 2010

11.

Pilot permit - gyroplane

December 31, 2010

12.

Pilot permit - ultra-light aeroplane

December 31, 2010

[18] The Applicant possessed a private pilot licence. Therefore, the expiry date was June 30, 2010. The Applicant's licence had clearly expired at the date of the contravention, July 11, 2010. Although the Minister has established all the elements of the offence, the Applicant's argument that he should have been notified of the expiration of his licence is valid. Other than producing the relevant sections of the CARs, the Minister did not put into evidence any material indicating pilots were notified of the expiration of their licences. The only material put into evidence were the relevant CARs sections. The CARs are admittedly lengthy and convoluted, making it difficult for pilots to navigate. Furthermore, there was no direct indication to pilots that their licences were about to expire as the old paper licences did not contain expiry dates.

[19] Although the CARs are publicly available, without some form of notice or pilots repeatedly checking the CARs for changes, it is difficult for pilots to become aware of the new expiry dates. Although ignorance of the law is no excuse, it is fair to expect Transport Canada to issue some sort of clear widely accessible notice to pilots of the impending expiration. Such notice was never produced at the Review Hearing.

[20] The Applicant also argued that he called Transport Canada and was told they were busy processing the commercial licences first. Unfortunately, Mr. Genn did not produce sufficient evidence to find that there was an officially induced error. Mr. Genn could not provide the name of the individual he spoke to, or any other evidence indicating Transport Canada gave him the wrong information.

[21] With that said, I do find the lack of evidence regarding notice to pilots of the expiry date to be a severe mitigating circumstance in this case which justifies a reduction in the suspension. Other than the CARs, the Minister produced no evidence of any formal notice being given to pilots. No copies of public announcements were produced, nor any evidence establishing that presentations took place at any flying clubs. As a result of the lack of notice, I reduce the suspension from 14 days to 1 day.

B. Count 2

[22] Subsection 401.03(1) clearly states that a valid medical certificate is required in order for a pilot licence to be valid. The validity of a medical certificate is determined by subsection 404.04(6) of the CARs which states the following:

404.04(6) Subject to subsection (9), the validity period of a medical certificate for a permit, licence or rating that is set out in column 1 of the table to this subsection is set out in column 2 if the holder of the permit, licence or rating is less than 40 years of age and in column 3 if the holder of the permit, licence or rating is 40 years of age or older.

TABLE

Item

Licence, permit or rating

Medical certificate validity period if the holder is less than 40 years of age

Medical certificate validity period if the holder is 40 years of age or older

1

Airline transport pilot licence  —  aeroplane

12 months

6 months

2

Airline transport pilot licence  —  helicopter

12 months

6 months

3

Commercial pilot licence  —  aeroplane

12 months

6 months

4

Commercial pilot licence  —  helicopter

12 months

6 months

5

Private pilot licence  —  aeroplane

60 months

24 months

6

Private pilot licence  —  helicopter

60 months

24 months

7

Pilot licence  —  glider

60 months

60 months

8

Pilot licence  —  balloon

60 months

24 months

9

Pilot permit  —  recreational

60 months

24 months

10

Pilot permit  —  gyroplane

60 months

24 months

11

Pilot permit —  ultra-light aeroplane

60 months

60 months

12

Flight instructor rating  —  glider

60 months

60 months

13

Flight instructor rating  —  ultra-light aeroplane

60 months

60 months

14

Flight engineer licence

12 months

12 months

15

Air traffic controller licence

24 months

12 months

16

Student pilot permit  —  aeroplane

60 months

60 months

17

Student pilot permit  —  helicopter

60 months

60 months

18

Student pilot permit  —  glider

60 months

60 months

19

Student pilot permit  —  gyroplane

60 months

60 months

20

Student pilot permit  —  balloon

60 months

60 months

21

Student pilot permit  —  ultra-light aeroplane

60 months

60 months

[23] According to the Distributed Air Personnel Licensing System printout (Exhibit M-3), Mr. Genn received his last medical examination on February 25, 2008. Taking Mr. Genn's date of birth, he would have been over 40 years old at the time of his examination. Pursuant to subsection 404.04(6), Mr. Genn's medical certificate would have expired within 24 months of its issuance. As such, Mr. Genn's medical certificate expired on March 2, 2010, which is just over 24 months from the date of the medical examination. Therefore, the Minister has established all the elements of subsection 401.03(1)(c).

[24] The Applicant had no counter arguments contesting the invalidity of his medical certificate. He initially claimed to Inspector Bulfone that he was under 40 years old at his last medical examination. However, based on the record before me, he was actually over 40 at the time of his medical examination. I also do not find that there were any mitigating circumstances that would justify a reduction of this penalty. Therefore, I confirm a suspension of 14 days.

VI. DETERMINATION

[25] The Minister of Transport did prove, on a balance of probabilities, that the Applicant, Steven Diego Genn, contravened two counts of subsection 401.03(1) of the CARs. However, on Count 1, due to mitigating circumstances, the suspension of 14 days is reduced to 1 day. On Count 2, the suspension of 14 days is upheld.

June 20, 2011

Stephen Rogers

Member


Appeal decision
Herbert Lee, Richard F. Willems, J. Richard W. Hall


Decision: March 5, 2012

Citation: Genn v. Canada (Minister of Transport), 2012 TATCE 7 (Appeal)

Heard at Kamloops, British Columbia, on October 19, 2011

Held: The Appeal is dismissed. The Minister of Transport has proven, on a balance of probabilities, that the Appellant, Steven Diego Genn, contravened two counts of subsection 401.03(1) of the Canadian Aviation Regulations. Consequently, the 15-day suspension sanctioned by the Review Member stands and will commence on the thirty-fifth (35th) day following service of this Appeal Decision.

I. BACKGROUND

[1] On July 11, 2010, the Appellant, Steven Diego Genn, was the subject of a random routine inspection upon landing his aircraft at the Salmon Arm Airport in Salmon Arm, British Columbia. When asked for his licence and medical certificate, the Appellant supplied an allegedly expired licence as well as what was later determined to be an invalid medical certificate. Consequently, the Minister of Transport ("Minister") issued a Notice of Suspension ("Notice") to the Appellant on November 8, 2010, pursuant to section 6.9 of the Aeronautics Act ("Act").

[2] This Notice was issued in part because the Minister had determined that the Appellant had acted as a flight crew member or exercised the privileges of a flight crew permit, licence or rating without holding or producing the appropriate permit, in contravention of subsection 401.03(1) of the Canadian Aviation Regulations ("CARs") (Count 1). The licence suspension assessed against the Appellant for this count was for 14 days.

[3] The Notice also included a charge under subsection 401.03(1) of the CARs for acting as a flight crew member or exercising the privileges of a flight crew permit, licence or rating without holding an appropriate medical certificate (Count 2). The licence suspension assessed against the Appellant for this count was for 14 days. In total, the licence suspension assessed against the Appellant was for 28 days.

[4] The Appellant filed a review of these charges on November 12, 2010. Accordingly, a Review Hearing took place in Kamloops, British Columbia, on April 6, 2011.

II. REVIEW DETERMINATION

[5] The Review Determination, dated June 20, 2011, held that the Minister had proven the Appellant's contravention of two counts of subsection 401.03(1) of the CARs. However, due to mitigating circumstances with regard to Count 1, the Review Member reduced the suspension for Count 1 from 14 days to 1 day. The Review Member determined that the reduction in penalty was reasonable due to the lack of evidence provided by the Minister regarding notice given to pilots concerning the expiry date of their licences due to the new CARs requirements.

[6] The Review Member determined that the Minister had proven all the elements of Count 2 and upheld the 14-day suspension. The Review Member noted that the Appellant had not contested the invalidity of his medical certificate and the Review Member did not find any mitigating circumstances to justify a reduction in this penalty.

[7] The Review Member found a total suspension of 15 days for both counts to be appropriate under the circumstances of this case.

III. GROUNDS FOR APPEAL

[8] The Appellant filed a Notice of Appeal on July 19, 2011, which reads as follows:

On count one; that the Applicant acted as a member of a flight crew while I did not have a valid pilot licence.

I would like to appeal this ruling on the following grounds:

1) That the Minister of Transport failed in its duties to properly notify the applicant of changes in licensing requirements.

2) That the Tribunal Member agreed with the Applicant at the Hearing, and recognized the issue of notification. The Applicant believes that the Member ought to have dismissed the charge outright, instead of reducing the penalty from 14 days to 1 day.

3) That the Minister has failed to establish the elements of the offence in regards to the term "Booklet Label", as it applies to licensing. There is no definition of the term "Booklet Label" in the Regulations, and that the term is not a commonly used or easily understood expression. The Minister has failed to establish exactly what a Booklet Label is and therefore, failed to prove that the Applicant was not in possession of one.

On count two; that the Applicant did not possess a medical certificate.

I would like to appeal this ruling on the second charge on the following grounds:

1) That the second charge is redundant. If the Minister has proved its case on count one, then the licence was not valid. A medical certificate doesn't have any standing on its own; it is just a validation of the licence. If a licence is invalid, it doesn't become less valid by the lack of a medical certificate. It's either valid or it's not. The second charge never should have been laid.

IV. ISSUES

[9] The issues to be determined on this Appeal are as follows:

  1. What is the appropriate standard of review?
  2. Was the Review Member's finding with regard to Count 1 and the resulting sanction reasonable?
  3. Did the Minister err in charging the Appellant with Count 2?
  4. Was the Review Member's determination with regard to Count 2 reasonable?

V. ARGUMENTS

A. Appellant

(1) The Review Member Ought to Have Dismissed the First Count

[10] The Appellant contends that the Review Member agreed in the Review Determination with the Appellant's assertion that the Minister owed a duty to pilots to properly notify them of the changes in licensing requirements due to the CARs. However, the Appellant disagrees with the Review Member's decision to reduce the penalty from a suspension of 14 days to a suspension of 1 day as a result. The Appellant contends that the Review Member should have dismissed the charges outright rather than reduce the suspension.

[11] The Appellant expresses grave concern that the Minister did not inform the public of the change in licensing regulations. While the Minister had every opportunity to make the law known to pilots, he did not. The Appellant states that the demands the Minister placed on pilots were unreasonable. He submits that there is a dramatic difference between the past 30 years when pilots did not have to do anything to keep their licences updated and the current CARs regime. As such, the Minister owed a duty to the aviation community to inform it of the changes. Furthermore, the Appellant is concerned that he was charged with an infraction so soon after the alleged expiry of his previous pilot licence.

(2) The Minister Failed to Establish the Elements of the Offence with Regard to the "Booklet Label"

[12] The Appellant notes that there is no definition for the term "Booklet Label" in the CARs and that this term is not commonly used or easily understood.

[13] The Appellant contends that the licensing regulation at issue is practically unmanageable and holds no basis in law or functionality. He submits that almost anyone reading the CARs would skip past subsection 401.03(1) without realizing what they had read and that the wording of subsection 401.03(1) is inadequate to determine its meaning.

[14] The Appellant believes that the term "Booklet Label" is at the root of the issue in this case. He submits that if his licence had been issued in the form of a Booklet Label prior to June 2010, it would still be valid. The Appellant submits that the burden is on the Minister to establish what a Booklet Label is and also to prove that the Appellant was not in possession of one. The Appellant submits that the Minister failed in this regard because the Minister did not clarify the actual meaning of the term Booklet Label and also failed to prove that his licence had not been issued in this form.

(3) The Second Charge is Redundant

[15] The Appellant submits that the second charge with regard to the invalidity of his medical certificate is redundant. He suggests that a medical certificate does not have any standing on its own and that it is just a validation of a licence. As such, a licence is no less valid by the lack of a medical certificate. The Appellant contends that the Minister erred in laying the second charge against him.

[16] Moreover, although the Appellant believed that his medical certificate was valid for five years, he acknowledges that he might have been mistaken in this regard. Nonetheless, he submits that subsection 401.03(1) of the CARs should be interpreted such that any pilot who has had a medical certificate issued within five years of his 45th birthday should qualify as falling under 40 for the purposes of the subsection.

[17] Finally, the Appellant submits that the suspensions he received were harsh and that a loss of licence is more appropriate for people who pose a danger to society rather than for those whose paperwork may be disorderly.

B. Minister

(1) Sanction

[18] The Minister believes that the Review Member's decision to reduce the Appellant's suspension for Count 1 from 14 days to 1 day was "generous" but reasonable and that his decision ought to be confirmed by the Appeal Panel.

(2) Requirements to Act as a Flight Crew Member

[19] The Minister submits that there are four requirements to be met before a person can act as a flight crew member pursuant to subsection 401.03(1) of the CARs. The Minister contends that any of the required elements not being met may result in a separate and distinct contravention of the CARs and a resulting sanction.

(3) Notice of Changes in Licensing Requirements

[20] The Minister's witness, Inspector Claudio Bulfone, testified at the Review Hearing that a notice was published in the Canadian Owners and Pilots Association's newsletter to advise pilots that their licences would expire on June 30, 2010. The witness also noted that representatives of Transport Canada made presentations to various flying clubs with regard to the changes, and that notice was also given on the Transport Canada website.

[21] The Appellant provided testimony during the Review Hearing that he was aware that new licences were going to be issued and, as a result, had contacted Transport Canada. Consequently, the Appellant must take some responsibility for not renewing his licence and the Review Member's decision to reduce his suspension was fair.

(4) Booklet Label

[22] The first charge against the Appellant makes no mention of the term "Booklet Label". Rather, the charge was based on the fact that the Appellant did not hold the "appropriate… licence". The Minister submits that the form of the licence is irrelevant and immaterial in this case. The significant fact in this instance is that the Appellant did not have a valid pilot licence on July 11, 2010.

(5) Medical Certificate

[23] The Minister notes that the Appellant did not dispute the invalidity of his medical certificate at the Review Hearing, nor did he adduce any evidence of mitigating circumstances for the 14‑day penalty assigned to him for Count 2. However, the Appellant is now questioning the charge for Count 2.

[24] The Appellant was 41 years of age at the time of his medical examination. Consequently, the CARs stipulate that his medical certificate was only valid for two years, as opposed to the five years it would have been valid if his examination had occurred before he turned 40 years old. The Minister submits that the Appellant's lack of an appropriate medical certificate is a contravention of the CARs that is separate and independent from his charge of flying without a valid pilot licence.

(6) Conclusion

[25] The Minister submits that there are no grounds in this instance to justify a reversal of the Review Member's Determination.

VI. ANALYSIS

A. Issue 1 – What is the Appropriate Standard of Review?

[26] Before reviewing a determination of a Review Member, an Appeal Panel must first determine the standard of review upon which to examine the Determination. The Supreme Court held in Dunsmuir v. New Brunswick, 2008 SCC 9, at paragraph 57, that a standard of review analysis need not be repeated if the question has been previously determined.

[27] In Billings Family Enterprises Ltd. v. Canada (Minister of Transport), 2008 FC 17, the Federal Court considered the appropriate standard of review for Tribunal decisions. The Federal Court determined that when reviewing questions of fact and credibility, the Appeal Panel owes considerable deference to the Tribunal Member. However, where issues of law are concerned, no deference is due to the Review Member and the Appeal Panel may make its own findings.

[28] In reviewing the facts of the case before him, the Review Member determined that the Minister had proven the occurrence of the first offence, but he lowered the resulting suspension from 14 days to 1 day. In reviewing the Review Member's Determination on these issues, the Appeal Panel must consider if the Review Member's findings were reasonable. Indeed, according to Dunsmuir, so long as a decision is within a range of reasonable outcomes based on the evidence before the decision‑maker, a reviewing body should not interfere.

[29] The Appellant also contends that the Minister erred in laying the second charge against him. In considering whether the Minister erred in charging the Appellant with Count 2, a standard of review of correctness is appropriate. If the Appeal Panel finds that the Minister did not err in laying this charge, it must then consider if the Review Member's decision to uphold this charge was reasonable.

B. Issue 2 Were the Review Member's Findings with Regard to Count 1 and the Resulting Sanction Reasonable?

[30] The Minister notes that the offences for which the Appellant has been charged are strict liability offences. As such, an intention to commit the offence is not necessary. Instead, the Minister must simply establish that the offence occurred. From there, any mitigating factors or defences may be considered in determining the appropriate sanction.

[31] The Review Member holds that "the Applicant possessed a private pilot licence. Therefore, the expiry date was June 30, 2010. The Applicant's licence had clearly expired at the date of the contravention, July 11, 2010". The Review Member continues to state that "…the Minister has established all the elements of the offence". Unfortunately, the Review Member does not refer to the evidence that convinced him that the licence had "clearly expired". Moreover, the Member does not explain on what basis he believes that the Minister established the elements of the offence. This information would have been valuable in reviewing the Determination to ensure that it was made on a sound basis. This lack of information, however, does not automatically require the Appeal Panel to overturn the Determination.

[32] Rather than simply examining the reasons given by the Review Member, the task of the Appeal Panel includes a thorough review of the evidence that was before the Review Member to decide if his Determination is within the reasonable range of outcomes. Indeed, in paragraph 12 of Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, the Supreme Court endorses the principle that deference to a decision-maker requires "a respectful attention to the reasons offered or which could be offered in support of a decision." Accordingly, the Appeal Panel should look past the evidence and reasons cited by the Review Member to determine if the evidence that was before him reasonably supports his Determination.

[33] In this instance, the Appeal Panel must examine all of the evidence that was before the Review Member to determine if that evidence reasonably supported the finding that the Minister had established all the elements of the first offence. The evidence clearly states that the Appellant was the pilot of the aircraft at the time of the alleged infraction. The next step is to determine whether the licence held by the pilot had expired pursuant to the CARs.

[34] The Appellant alleges that the Minister has failed to establish the elements of the offence in regards to the term "Booklet Label" since he has failed to establish exactly what a Booklet Label is, thus failing to prove that the Appellant was not in possession of one.

[35] The Appeal Panel agrees with the Appellant insofar as it would have been helpful if the Minister had provided information about the new licences and explained how these differ from the licence that was in the Appellant's possession at the time of the alleged infraction. Nevertheless, the oral evidence provided by Inspector Bulfone in combination with the notes on the Detection Notice (Exhibit M‑2) provide enough evidence to support the Review Member's finding that the licence in the Appellant's possession at the time of the infraction was an old paper licence that had expired pursuant to the CARs. As such, the Appeal Panel holds this finding to be within the range of reasonable outcomes.

[36] The Appellant further submits that the Review Member ought to have dismissed the charge outright rather than lower the sanction from 14 days to 1 day. However, the Appeal Panel is not in a position to simply substitute the Review Member's findings with its own on this issue. Rather, the task of the Appeal Panel is to consider whether the Review Member's Determination with regard to the sanction was reasonable. In the Appeal Panel's view, the Review Member's weighing of mitigating factors and the resulting lowered 1-day suspension are reasonable and should not be disturbed by the Appeal Panel.

C. Issue 3 – Did the Minister err in Charging the Appellant with Count 2?

[37] The Appellant brings before the Appeal Panel his concerns that the second count against him is redundant and should not have been laid. The Minister contends that this charge should stand.

[38] Adherence to subsection 401.03(1) of the CARs consists of four requirements which must be met in order for a person to act as a flight crew member or to exercise the privileges of a flight crew permit. At the time of the inspection, the Appellant was found not to have met two of these requirements: the first being the lack of an appropriate permit, licence or rating; and the second being the lack of an appropriate medical certificate.

[39] The Appeal Panel agrees with the Minister's submission that non-adherence to these requirements may result in separate infractions under subsection 401.03(1) of the CARs. In this case, it is clear that the charges were for two distinct violations of the CARs which occurred due to the Appellant's flight on or about July 11, 2010. Accordingly, the Appeal Panel finds that the Minister did not err in law in laying the second charge against the Appellant.

D. Issue 4 – Was the Review Member's Determination with Regard to Count 2 Reasonable?

[40] The Review Member found that the Minister had proven Count 2 against the Appellant. Furthermore, he found no mitigating factors that would have justified lowering the related sanction. Accordingly, the Review Member allowed the second charge against the Appellant to stand.

[41] The evidence before the Review Member clearly demonstrates that the Appellant was over 40 years old when he obtained his last medical certificate. As an automatic consequence, based on subsection 404.04(6) of the CARs, the medical certificate was only valid for 24 months. Parliament has made its intention clear through the CARs that medical certificates issued before a pilot's 40th birthday are valid for a longer period of time than those which are issued after a pilot's 40th birthday. While this distinction may seem arbitrary to the Appellant, it is not the place of the Tribunal to question or modify the CARs, but rather to ensure that they are properly enforced.

[42] The Minister has shown that the Appellant was not in possession of a valid medical certificate on July 11, 2010. The Review Member found that no mitigating circumstances existed that would require changing the sanction. Similarly, the Appeal Panel is satisfied that the Minister has proven the Appellant's contravention of subsection 401.03(1) of the CARs. Moreover, the Appeal Panel does not find any mitigating circumstances with regard to Count 2. As such, the 14-day suspension upheld by the Review Member must stand.

VII. DECISION

[43] The Appeal is dismissed. The Minister of Transport has proven, on a balance of probabilities, that the Appellant, Steven Diego Genn, contravened two counts of subsection 401.03(1) of the Canadian Aviation Regulations for a total suspension of 15 days.

March 5, 2012

Reasons for the Appeal Decision: J. Richard W. Hall, Chairperson

Concurred by: Herbert Lee, Member

Richard F. Willems, Member