Decisions

TATC File No. P-3433-33
MoT File No. EMS 62437

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Aidan Butterfield, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, C. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96 433, ss 605.03(1) and 605.94(1)


Review Determination
Elizabeth MacNab


Decision: August 9, 2011

Citation: Butterfield v. Canada (Minister of Transport), 2011 TATCE 19 (Review)

Heard at Vancouver, British Columbia, on October 18 to 21, 2010

Held: The Minister of Transport has proven, on a balance of probabilities, that the Applicant, Aidan Butterfield, did contravene subsections 605.03(1) and 605.94(1) of the Canadian Aviation Regulations. Accordingly, the assessed monetary penalties of $1 000 and $750 respectively, for a total amount of $1 750, are upheld. This amount 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.

I. BACKGROUND

[1] On August 9, 2007, a Notice of Assessment of Monetary Penalty ("Notice") was issued to the Applicant, Aidan Butterfield, by the Minister of Transport ("Minister") in respect of two alleged contraventions of subsections 605.03(1) and 605.94(1) of the Canadian Aviation Regulations ("CARs"). The alleged contraventions are set out in Schedule A of the Notice as follows:

1) On or about September 1, 2006 at approximately 10:26 hours local time, at or near Pitt Meadows, British Columbia, you Aidan Butterfield, operated an aircraft in flight when a flight authority was not in effect in respect of the aircraft, specifically, aircraft bearing Canadian registration mark C‑GIPO flew from Pitt Meadows airport to Boundary Bay airport when it was overdue for its annual inspection thereby contravening subsection 605.03(1) of the Canadian Aviation Regulations.

Monetary penalty assessed: $1000.00

2) On or about September 1, 2006 at approximately 10:26 hours local time, at or near Pitt Meadows, British Columbia, the particulars set out in column 1 of an item in Schedule I to this Division of the Canadian Aviation Regulations, were not recorded in the journey log at the time set out in column II of the item and were not recorded by the person responsible for making entries set out in column III of that item, specifically, a flight conducted in aircraft C‑GIPO on said date and location was not recorded in the journey log in the manner required by this regulation thereby contravening subsection 605.94(1) of the Canadian Aviation Regulations.

Monetary penalty assessed: $750.00

Pursuant to subsection 8.4(1) of the Aeronautics Act, you, as the registered owner of the aircraft C‑GIPO, are being proceeded against in respect of this offence and are liable to the penalty provided as punishment for it.

Total assessed monetary penalty: $1750.00

[2] On October 6, 2007, the Applicant requested a review of the Minister's decision to the Transportation Appeal Tribunal of Canada ("Tribunal"). After three preliminary Motions were disposed of, the Tribunal heard the matter from October 18 to 21, 2010.

II. STATUTES AND REGULATIONS

[3] Subsection 8.4(1) of the Aeronautics Act ("Act") sets out the vicarious liability of the registered owner of an aircraft for contraventions related to that aircraft:

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.

[4] Subsection 605.03(1) of the CARs sets out the requirement to have a flight authority in order to operate an aircraft:

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

a) a flight authority is in effect in respect of the aircraft;

(b) the aircraft is operated in accordance with the conditions set out in the flight authority; and

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

[5] Subsection 605.85(1) of the CARs sets out the requirement to have a maintenance release before operating an aircraft after maintenance:

605.85 (1) Subject to subsections (2) and (3), no person shall conduct a take-off in an aircraft, or permit a take-off to be conducted in an aircraft that is in the legal custody and control of the person, where that aircraft has undergone maintenance, unless the maintenance has been certified by the signing of a maintenance release pursuant to section 571.10.

[6] Section 571.10 sets out the requirements for the content of a maintenance release:

571.10 (1) No person shall sign a maintenance release required pursuant to Section 605.85 or permit anyone whom the person supervises to sign a maintenance release, unless the standards of airworthiness applicable to the maintenance performed and stated in Chapter 571 of the Airworthiness Manual have been complied with and the maintenance release meets the applicable requirements specified in section 571.10 of the Airworthiness Manual.

(2) Except as provided in subsection (4), a maintenance release shall include the following, or a similarly worded, statement:

"The described maintenance has been performed in accordance with the applicable airworthiness requirements."

(3) No maintenance release is required in respect of any task designated as elementary work in the Aircraft Equipment and Maintenance Standards that is performed by

(a) in the case of a glider, a balloon or an unpressurized small aircraft that is powered by a piston engine and not operated pursuant to Part IV or VII, the pilot of the aircraft;

(b) in the case of an aircraft operated under Part IV or VII, a person who has been trained and authorized in accordance with the flight training unit's or the air operator's maintenance control manual (MCM), approved under Subpart 6 of Part IV or of Part VII, respectively; or

(c) in the case of an aircraft operated pursuant to Subpart 4 of Part VI, a person who has been trained in accordance with those sections of a private operator's operations manual that contain details of the operator's maintenance control system.

(4) Where a person signs a maintenance release in respect of maintenance performed on an aircraft, the satisfactory completion of which cannot be verified by inspection or testing of the aircraft on the ground, the maintenance release shall be made conditional on the satisfactory completion of a test flight carried out pursuant to subsections 605.85(2) and (3), by the inclusion of the phrase "subject to satisfactory test flight".

(5) No person shall sign a maintenance release in respect of specialized maintenance unless the requirements of section 571.04 have been met.

[7] Subsection 571.11(1) states who may sign the maintenance release:

571.11  (1) Except as provided in subsections (2) and (7), no person other than the holder of an aircraft maintenance engineer (AME) licence issued under Part IV, specifying a rating appropriate to the aeronautical product being maintained, shall sign a maintenance release as required by section 571.10.

[8] Together paragraph 605.86(1)(a) of the CARs and paragraph 2(a) of the associated Standard 625.86 establish the requirement for an annual inspection:

605.86 (1) Subject to subsection (3), no person shall conduct a take-off in an aircraft, or permit a take-off to be conducted in an aircraft that is in the person's legal custody and control, unless the aircraft is maintained in accordance with

(a) a maintenance schedule that conforms to the Aircraft Equipment and Maintenance Standards; and

[…]

625.86 Maintenance Schedules

Information Note:

(i) The phrase "no person shall conduct a takeoff, or permit another person to conduct a takeoff" is used in the regulations to clearly emphasize an aircraft owner's responsibility to advise any person operating his/her aircraft of any maintenance that the aircraft might require pursuant to the regulations.

(ii) CAR Part I defines "Owner" as the person who has legal custody and control of the aircraft.

(1) Pursuant to CAR 605.86, all aircraft, other than ultra-light or hang-gliders, shall be maintained in accordance with a maintenance schedule, approved by the Minister, that meets the requirements of this Aircraft Equipment and Maintenance Standard 625.

(2)

(a) As applicable to the type of aircraft, at intervals not to expire later than the last day of the 12th month, following the preceding inspection, Part I and  Part II of the Maintenance Schedule detailed in Appendix B of these standards are approved by the Minister for use on other than large aircraft, turbine-powered pressurized aeroplanes, airships, any aeroplane or helicopter operated by a flight training unit under  CAR 406, or any aircraft operated by air operators under CAR Part VII.

[9] Subsection 605.94(1) and Item 4 of the associated Schedule set out the requirements related to the journey log.

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.

CAR 605 Schedule I - Journey Log

4.

Air time of each flight or series of flights and cumulative total air time and, where applicable, number of operating cycles or landings since date of manufacture

Daily, on completing each flight or series of flights

The pilot-in-command of the aircraft or a person designated by an air operator, a private operator or a flight training unit

III. PRE-HEARING RULINGS

A. Ruling of March 26, 2009

[10] This Ruling dealt with matters arising out of a teleconference held on March 23, 2009, and heard by then Tribunal Member, Sandra Lloyd. Also participating were Mr. Butterfield and Jacinthe Grondin on behalf of the Minister.

[11] The first issue raised was whether the Minister was required to call as a witness, Don Bradshaw, the Aircraft Maintenance Engineer ("AME"), from whose hangar Mr. Butterfield removed the aircraft. The Tribunal Member ruled that the Minister was entitled to present his case in any manner he saw fit and could not be required to call any particular witness.

[12] The other two issues related to witnesses. The Minister's representative undertook to enquire as to whether there was an independent witness that had seen the take-off of the aircraft. Finally, the Minister would provide to the Applicant a complete list of the witnesses that the Minister was intending to call at the Review Hearing.

B. Ruling of February 12, 2010

[13] This Ruling related to a Motion for Disclosure filed by the Applicant on April 1, 2009, and heard by teleconference before this Tribunal Member on December 4, 2009. At that point, disclosure was requested in relation to eight specified items. No disclosure was ordered with respect to five of the items. Orders were made requiring disclosure of:

  • Notes of conversations or correspondence with Mr. Bradshaw that were part of the investigation;
  • Any notes of conversations with Messrs. James Kondrosky and Sean Braiden made during the course of the investigation.

[14] Finally, I ordered that the Minister determine whether any correspondence existed between the Minister and the ZGF airport personnel with regard to this matter. If such correspondence existed and the Minister wished to dispute its relevance, the matter would be heard at the Review Hearing.

C. Ruling of September 21, 2010

[15] The Applicant filed a Motion on May 14, 2010 asking for relief on four separate matters. The Motion was dealt with through written submissions consisting of the Applicant's Motion with little supporting documentation, a Response from the Minister, and a substantial Reply from the Applicant. Because of the voluminous material contained in the Applicant's Reply, I ruled that it could be treated as an amended Motion and allowed the Minister to make a further Response and the Applicant to make a further Reply.

[16] The first relief requested was that the proceeding be dismissed on the grounds of delay. Three separate grounds of delay were alleged: pre-notification delay, pre-hearing delay and stale complaint. Pre-notification delay was alleged because the Notice was not served on the Applicant until September 6, 2007, although it was delivered to the Post Office for service on August 10, 2007. I ruled that the requirement that an action be commenced within one year of the date of the contravention, September 1, 2006, was met by the delivery for service on August 10, 2007.

[17] With regard to pre-trial delay, I ruled that any delay between the time that the Minister first became aware of the contravention and the time the Notice was issued was reasonable and that while there were undoubted delays in bringing the matter to a Review Hearing, such delays could be attributed to both parties. Finally, with regard to the allegation of stale complaint, I ruled that the Minister is justified in investigating any complaint that comes before him even if it is made well after the event occurred.

[18] The second relief requested was that the matter be stayed or dismissed on the basis of abuse of process. On this matter, I ruled that the Minister had acted reasonably on the basis of information before him and that there had not been an abuse of process.

[19] The third relief requested in the Motion was for an Order excluding evidence based on statements given by the Applicant to the Minister on the grounds that he had been insufficiently warned and that the statements had been made in response to a promise of favour made by the Minister. On this point, I accepted the argument of the Minister that, as a matter of evidence, it would be more appropriate to deal with the question in a voir dire at the Review Hearing.

[20] The final matter raised in the Motion was a request that the addresses of two witnesses and one other person be disclosed. I denied this request on the basis that a person's address was personal information under the Privacy Act, R.S.C. 1985, c. P-21, and could not be disclosed without the individual's consent.

IV. EVIDENCE

A. Minister of Transport

(1) Linda Todd

[21] Linda Todd is a Unit Operations Specialist for Nav Canada at the Boundary Bay control tower and has been in that position since 1998. She explained the information presented in documents extracted from the Nav Canada Aircraft Movement System ("NCAM") that showed aircraft C‑GIPO left Pitt Meadows airport at 10:26 local time on September 1, 2006 (Exhibit M‑1) and landed at Boundary Bay airport at 10:46 local time on the same day (Exhibit M‑2).

[22] On cross-examination, Ms. Todd stated that she did not make the entries in NCAM although it is possible that she may have made the entry for Boundary Bay, British Columbia, where she worked.

(2) Shawn Braiden

[23] Shawn Braiden is an AME and a friend of Mr. Bradshaw, whom he helps out occasionally, and also a friend of Mr. Kondrosky. On the morning of September 1, 2006, he was present and chatting but not working with Mr. Kondrosky when Mr. Butterfield, together with two others, arrived to pick up his aircraft. Mr. Kondrosky was working on the aircraft at that point and, after some discussion, including telephone conversations between Mr. Bradshaw and both Messrs. Kondrosky and Butterfield, it was decided to put the aircraft back together. The work consisted of replacing the cowling. Mr. Braiden was aware that the aircraft was there for repairs and an annual inspection and thought that all that was necessary had been done to the aircraft. He was not aware of the state of the paperwork.

[24] On cross-examination, Mr. Braiden confirmed that he was chatting with Mr. Kondrosky but not working on the aircraft when Mr. Butterfield arrived, although he later helped put on the cowling. He has full‑time employment elsewhere but occasionally helps out Mr. Bradshaw. He is not paid in cash for this help but is given space in Mr. Bradshaw's hangar. He clarified that an annual inspection was not necessarily an indication of airworthiness but said the aircraft looked fine when it taxied away from the hangar.

[25] Mr. Braiden was aware that Mr. Kondrosky was working on the exhaust hangers but did not hear one of Mr. Bradshaw's friends point out that automobile rather than aircraft parts were being used. Finally, over objections from the Minister, I allowed Mr. Braiden to answer a number of questions concerning the time various repairs to aircraft might take.

[26] On re-examination, it was Mr. Braiden's understanding that once a defect had been noted in the log book the aircraft was effectively grounded.

(3) Alex Sage

[27] Alex Sage has been an AME since 1965. He introduced Exhibit M-3, an Application for a Flight Permit and the resulting Flight Authority. He explained that a Flight Authority was necessary to authorize the flight of an aircraft in certain situations where major work needed to be done on it, or where the annual inspection was overdue, and that a Flight Authority authorized a flight between specified points. He was shown a copy of the aircraft log (later to be formally introduced as Exhibit M-6) and agreed that he was responsible for signing off for the work listed, including an annual inspection, on October 23, 2006. He said the work had been done either by him or one of his employees as time permitted shortly before that date.

[28] In cross-examination, Mr. Sage explained that Transport Canada officials had typed in the reason for applying for a flight authority as "expired annual" although he had signed the application. Mr. Sage explained that Transport Canada officials had used this reason rather than the more complicated explanation that he had been told by Mr. Butterfield that he had the aircraft but not the log book, and so there was no record of an annual inspection. Mr. Butterfield also told him that he would need to make a new log book and asked him to do an annual inspection for the new log book.

[29] Mr. Sage inspected the aircraft at Boundary Bay and found nothing that would render it unsafe for flight. Mr. Sage also applied for and received the flight permit. After Mr. Butterfield flew the aircraft to Mr. Sage's hangar, Mr. Sage had the necessary inspections and work performed and made the required entries in the new log book. He answered a number of questions about the time usually required to perform various repairs. He agreed that where an aircraft is damaged, it is up to the person in charge of the aircraft to make the proper entries in the log book, not the AME.

[30] In re-examination, Mr. Sage agreed that an AME must sign the log book certifying that the specified work was done. Mr. Sage noted that an aircraft that is safe for flight is not necessarily airworthy. He also noted that in calculating charges for work on an aircraft, only the time actually spent working on it is charged for, and not the time spent waiting for the arrival of parts that needed to be ordered.

(4) James Kondrosky

[31] Mr. Kondrosky has been an AME since the early 1990s and is employed by Mr. Bradshaw. He began working on Mr. Butterfield's aircraft in the summer of 2006 shortly before the incident. He did some of the annual inspection, a fuel leak check, panels and ‘cowled it up'.

[32] On the morning of September 1, 2006, Mr. Kondrosky's understanding was that Mr. Butterfield would be coming in the afternoon to pick up the aircraft but Mr. Butterfield arrived with some others between 10:00 and 11:00 in the morning. Mr. Butterfield became quite angry that the aircraft was not ready and said he was going to take it away even though Mr. Kondrosky told him that it would take several hours to complete and that the log book was with Mr. Bradshaw who was not present. Mr. Kondrosky telephoned Mr. Bradshaw who told him to allow Mr. Butterfield to take the aircraft, and so together with Mr. Braiden, the two pushed the aircraft out of the hangar and replaced the cowling. Mr. Butterfield then took the aircraft and taxied it to get fuel.

[33] Mr. Kondrosky testified that as far as he was aware, the work for the annual inspection had been completed but that when Mr. Butterfield took the aircraft, the exhaust needed to be attached and a fire extinguisher was missing. At that time, the aircraft was not airworthy. Mechanically, it was not airworthy because the work had not been finished and legally it was not airworthy because the work done had not been entered into the log book.

[34] In cross-examination, Mr. Kondrosky said the time between Mr. Butterfield's arrival and departure was about an hour. This would include talking to Mr. Butterfield, then Mr. Bradshaw, putting the cowling on, pushing the aircraft out and explaining how to get to the fuel facility. He could not remember whether or not he and one of the persons accompanying Mr. Butterfield had inspected the aircraft and tested the ailerons. He did not say anything about the airworthiness of the aircraft at that point.

[35] Mr. Kondrosky also testified that the exhaust hangers had been given to him by Mr. Bradshaw for installation; that he was aware that they were an automotive product, and that he felt that they were adequate for the purpose. He agreed that Mr. Braiden was working with him on the aircraft when Mr. Butterfield arrived and stated that this was the only work that Mr. Braiden performed on the aircraft. He had not seen the log book and his knowledge concerning the log book was limited to what he had been told by Mr. Bradshaw. Two documents were shown to Mr. Kondrosky and marked as exhibits for information on the basis that they would be formally introduced at a later point in the proceedings. They were never formally identified and so, as I explained at the time they were presented, evidence relating to them will not be considered.

[36] On re-examination, Mr. Kondrosky stated that three people boarded the aircraft. He confirmed that he worked for Mr. Bradshaw according to his instructions and that it would be Mr. Bradshaw who signed the log books.

(5) Claudio Rosa

[37] Claudio Rosa has been a Civil Aviation Safety Inspector with the Enforcement Branch in the Pacific Region of Transport Canada since 2002. He has an AME licence and an accreditation from the Justice Institute of British Columbia as an Investigator in Administrative Law. He was assigned to investigate this matter in April 2007 as a result of a letter from Mr. Bradshaw (Exhibit M-4) making certain allegations about Mr. Butterfield's conduct on September 1, 2006.

[38] Mr. Rosa identified the log book for the aircraft C‑GIPO which was introduced as Exhibit M-5. Mr. Butterfield objected to the introduction of the entries in this log book made by Mr. Bradshaw. After considerable argument on this issue, discussed below, it was decided to continue with Mr. Rosa's evidence on matters not connected to these entries until a decision could be made on his objection.

[39] Mr. Rosa next identified the aircraft's journey log update that was provided to him by Mr. Butterfield on April 16, 2007 (Exhibit M‑6). Finally, he provided an extract from the Canadian Civil Aircraft Register which showed that Mr. Butterfield was registered as the owner of the aircraft C-GIPO (Exhibit M‑9). Mr. Rosa explained that after completing his investigation, he decided that there had been two contraventions of the CARs as set out in the Notice. The Notice was issued to Mr. Butterfield as registered owner of the aircraft, pursuant to subsection 8.4(1) of the Act.

[40] Mr. Rosa explained that there were two components to maintenance: the actual work done on an aircraft and, equally important, the signing of a maintenance release. He pointed out that the log book (Exhibit M-5) included a maintenance release for an annual inspection completed on May 26, 2005, and the updated journey log book (Exhibit M-6) included a maintenance release for an annual inspection on October 23, 2006. He pointed out that both entries conformed to the regulatory requirements but that there was a period of 17 months between the two entries leading to his conclusion that the flight in question was not in accordance with the regulatory requirements.

[41] Mr. Rosa then referred to Exhibits M-1 and M-2 (NCAM documents) as indicating that the flight from Pitt Meadows to Boundary Bay took place on September 1, 2006. He then reviewed Exhibits M‑5 and M‑6 to show that no entry concerning the flight had been made in either log book.

[42] In explaining the calculation of the monetary penalties, Mr. Rosa referred to the Aviation Enforcement Procedures Manual, Fourth Edition, which sets out suggested penalties for the designated provisions (Exhibit M‑10). These suggestions vary in accordance with whether the person against whom the penalty has been assessed is an individual or corporation and whether it is a first, second or subsequent offence. In this instance, the penalty in each count was assessed at the suggested level of a first offence for an individual.

[43] In cross-examination, I allowed a question, over the objection of the Minister, as to whether in his experience the key witness was usually called to give evidence at a Review Hearing. Mr. Rosa responded that it was up to the Case Presenting Officer to determine who should be a witness. He was also referred to an email, later introduced as Exhibit A-3, alleging a number of offences and asked whether he had investigated all the allegations and why he had not made charges for all offences.

[44] Mr. Rosa explained that he had considered all the matters and had decided to be lenient and recommend a penalty only in respect of the overarching offence of operating an aircraft when there was no flight authority in effect for that aircraft under subsection 605.03(1) of the CARs. With regard to the second count, he did not recommend a penalty for operating an aircraft without the journey log book on board, an offence which Mr. Butterfield pointed out he had admitted, since he was aware that the log book had not been returned. However, Mr. Rosa chose to pursue the contravention of subsection 605.94(1) for failing to make a log book entry concerning the flight which should have been included in the replacement log.

B. Applicant's Objection to the Introduction of Evidence

[45] Upon the introduction of Minister's Exhibit M-5, the log book of the aircraft C-GIPO, the Applicant raised an objection to the introduction of the last two pages. These pages contained a listing of work done and work not completed, and signed by the AME, Mr. Bradshaw. His objection was based on the argument that these entries were hearsay and that the "principled approach" to the admission of hearsay evidence should be applied to prevent the introduction of those pages. He made a detailed submission setting out his arguments on this matter and supported them by numerous references to decisions of the Courts and the Tribunal. He argued that the principled approach to the admission of hearsay evidence should apply in respect of evidence that would otherwise be of some probative value under section 28 of the Act. This section provides that:

28. In any action or proceeding under this Act, an entry in any record required under this Act to be kept is, in the absence of evidence to the contrary, proof of the matters stated therein as against the person who made the entry or was required to keep the record or, where the record was kept in respect of an aeronautical product, aerodrome or other aviation facility, against the owner or operator of the product, aerodrome or facility.

[46] The Applicant also submits that this section does not operate to exclude entries from the operation of the rule against hearsay evidence but rather confirms its status as an exception to the exclusionary rule. On this basis, such entries could only be admitted as evidence if they met the tests of necessity and reliability set out in the principled approach as clarified by the Supreme Court of Canada in R. v. Khelawon, 2006 SCC 57. Whether these tests have been met should be determined on a voir dire before the hearsay evidence is admitted. He argued that the test of necessity had not been met because the Minister could have called the person making the entries as a witness and chose not to do so. Nor could the Minister show that the entries were reliable in view of the questionable circumstances surrounding their making.

[47] Furthermore, the Applicant argued that section 28 provided that the entries are proof only in the absence of evidence to the contrary. He pointed out that there was evidence to the contrary that could be found in the materials filed in earlier Motions in this matter and in a prior civil matter between him and Mr. Bradshaw.

[48] In response, the Minister agreed that section 28 would not prevail over contrary evidence, but argued that such evidence would need to be presented to the Tribunal as part of the Applicant's defence.

[49] In reply, the Applicant suggested that, according to Khelawon, an initial ruling on the reliability of hearsay evidence should be based on prima facie evidence whereas its ultimate reliability, if admissible, would be decided by the adjudicator.

[50] After considering the matter, I ruled against the objection raised by the Applicant. Section 28 creates a presumption of the truth of entries that are required to be made. It is based on the assumption that such records are so likely to be reliable that they can be considered as proof of their contents as against the persons set out in the section whether or not they could be considered as hearsay. On this basis, I allowed the two pages to be introduced as Exhibit M-5A. I note, however, that none of the questions asked by the Minister's representative related to these entries and, when Mr. Rosa was asked if any of his testimony would be changed in the light of these entries, he replied in the negative.

C. Applicant's Evidence

(1) Antonio Nicola Sarra

[51] Antonio Sarra is an auto mechanic with his own business who has known Mr. Butterfield for over 20 years. On two occasions, he accompanied Mr. Butterfield and Daniel Wenger to Pitt Meadows airport taking his flatbed trailer so that it could be used to transport the aircraft if necessary. On the first occasion, towards the end of July, the aircraft was not ready; but in a conversation between Mr. Butterfield and the mechanic working on it, it was promised for the following Friday, September 1, 2006.

[52] When they returned on that date, the aircraft had its cowling off and Mr. Sarra noticed and told Mr. Butterfield that automotive exhaust clamps had been used on the engine. Both a mechanic who was working on the aircraft and Mr. Butterfield spoke on the telephone to Mr. Bradshaw who told each of them that the aircraft was good to go. After the cowling was replaced, Mr. Butterfield, Mr. Wenger and the mechanics spent about 20 minutes inspecting the aircraft, moving all the instruments and walking around it several times. Messrs. Butterfield and Wenger boarded the aircraft and Mr. Sarra got into his truck and drove off.

[53] In cross-examination, Mr. Sarra agreed that he was not an AME but said that he thought he was capable of saying what should be on an aircraft. He explained that his flatbed trailer was able to transport the aircraft and that Mr. Wenger had built some supports for the wings which would be stored on the outside of the trailer and the fuselage of the aircraft in the middle. Mr. Wenger is also one of his customers and a pilot for Air Canada.

[54] On re-examination, Mr. Sarra confirmed that the wings would need to be taken off the aircraft for it to be transported on the trailer. He also stated that on the first visit he had heard Mr. Butterfield tell the mechanic that if the aircraft was not ready when he returned the next week, he wanted the wings removed so that he could transport it on the trailer.

(2) Daniel Wenger

[55] Daniel Wenger is a pilot with Air Canada Jazz. He has been flying since 1965 and has accumulated 32,000 hours accident-free. He is qualified to do line indoctrination, simulator training and evaluation and general supervision of pilots. He has been a friend of Mr. Butterfield since 1975 and has occasionally acted as a safety pilot for him.

[56] Mr. Wenger's involvement with matters relating to the aircraft began with recommending a facility to repair its wing and then helping to transport the wing from Pitt Meadows airport to the shop and returning it once the repairs had been completed. He accompanied Messrs. Butterfield and Sarra to pick up the aircraft on both occasions.

[57] On the first visit, it was clear that Mr. Bradshaw was not ready to release the aircraft but he promised to have it ready the following week. On the second visit on September 1, 2006, when they arrived shortly after 9:00 a.m., the aircraft had the top engine cowling off. Both Messrs. Butterfield and Kondrosky spoke on the telephone with Mr. Bradshaw and were informed that the aircraft was ready to go. In answer to a question from Mr. Butterfield, Mr. Wenger said that he specifically recalled Mr. Kondrosky telling Mr. Braiden that he had been told to release the aircraft and that everything had been signed off. Mr. Wenger added that he would not have entered the aircraft if it had not been signed off. After the cowling had been replaced, he, Mr. Butterfield and the two mechanics did an inspection of the aircraft including testing the ailerons.

[58] On cross-examination, Mr. Wenger confirmed that he did not have an AME licence. He said that he did not speak to Mr. Bradshaw but that he got the information regarding the state of the aircraft from Mr. Kondrosky. He did not see the log book before taking the aircraft, but Mr. Wenger states that he is aware that maintenance records need to be documented and that airworthiness needs to be signed out prior to flight.

(3) Aidan Butterfield

[59] Mr. Butterfield has been a diesel mechanic for 45 years and operates a marine diesel engine repair shop. He has also worked as a marine average adjuster for the past 20 years and provided litigation support as an expert in marine diesel engine matters. He joined the British Columbia Bar four or five years ago and practices litigation involving internal combustion machines. On that basis, there was no objection raised to his testifying on the British Columbia law relating to repairer's liens. However, I did rule that he could not intersperse his expert evidence with his evidence as a witness in the substantive matter before the Tribunal. In this instance, the purpose of his expert evidence was to show that no lien had arisen as a result of the work done on the aircraft and this point was conceded by the Minister without argument.

[60] With regard to his evidence on the substantive matter, Mr. Butterfield had prepared a written presentation which he proposed to read to the Tribunal. The Minister objected to such a procedure and, although I stated that I was prepared to allow it, I pointed out that to do so might well affect the weight given to such evidence. On this basis, Mr. Butterfield decided to give his evidence viva voce referring to his notes only occasionally to refresh his memory. I note also that I informed the parties that, while I would not stop Mr. Butterfield if he occasionally drifted into argument as opposed to evidence, I would ignore such arguments unless they were repeated at the proper time in the proceedings.

[61] In his evidence relating to the history of this matter, Mr. Butterfield said that during the period the aircraft was with Mr. Bradshaw, they had a number of disagreements and that Mr. Bradshaw had ignored his explicit instructions concerning some repairs that he considered unnecessary (Exhibit A-5). He also stated that he and Mr. Bradshaw had a "falling out" primarily over the time taken to repair his aircraft. At this point, he also introduced Exhibit A-6, two Affidavits of Mr. Bradshaw, dated December 4, 2006, and January 10, 2007, respectively.

[62] Mr. Butterfield, together with friends, made two trips to collect the aircraft. When he arrived the first time, a week before September 1, 2006, the aircraft was not ready and he informed Mr. Bradshaw that he would take the aircraft on September 1 whether the repairs had been completed or not. Mr. Bradshaw undertook to have it ready and to have done an annual inspection at no cost. On August 31, 2006, Mr. Butterfield gave Mr. Bradshaw the log books for the aircraft in accordance with his request.

[63] On September 1, 2006, Mr. Bradshaw together with Messrs. Sarra and Wenger arrived at the Pitt Meadows airport shortly after 9:00 a.m. in the morning. There they found the aircraft in the hangar with Messrs. Kondrosky and Braiden. At that point the top engine cowling was removed and Mr. Kondrosky explained that he was about to install exhaust hangers. Mr. Sarra noticed that the hangers were automotive not aircraft hangers and after some discussion it was agreed that hangers were unnecessary.

[64] Mr. Kondrosky advised Mr. Butterfield that he could not release the aircraft without speaking to Mr. Bradshaw and called him on a portable telephone. During the conversation he passed the phone to Mr. Butterfield. Mr. Bradshaw told Mr. Butterfield that the aircraft was "legal to fly" and that he was doing the paperwork at that time. Mr. Butterfield then handed the phone back to Mr. Kondrosky, who reported that Mr. Bradshaw had told him to let Mr. Butterfield take the aircraft.

[65] The cowling was then replaced, the aircraft pushed out of the hangar and a walk‑around pre‑flight inspection occurred. This pre‑flight inspection was principally carried out by Messrs. Wenger and Kondrosky. It was quite thorough, and included testing the wings and various switches. During this inspection, Mr. Butterfield heard Mr. Kondrosky say to Mr. Wenger that the aircraft had been signed off. The only question that arose related to fuel. Mr. Kondrosky said that he was not familiar enough with that type of aircraft to say whether it had enough fuel for safe flight. Messrs. Wenger and Butterfield then boarded the aircraft, taxied to the fuel pumps and then flew the aircraft to Boundary Bay.

[66] During the conversation between Messrs. Butterfield and Bradshaw about retrieving the aircraft, Mr. Bradshaw mentioned that Mr. Butterfield owed him money for parts and labour. Mr. Butterfield agreed but also said that the amount would be subject to set off for his costs arising from the delay.

[67] After the flight to Boundary Bay, Mr. Butterfield left a voice mail message for Mr. Bradshaw saying that he would be at the airport at 2:00 that afternoon to pick up his log book. When he arrived, no one was there and the hangar was locked. He left another message saying that he would wait one hour but again no one came. He followed up on his request with a number of emails (Exhibit A-4).

[68] In cross-examination, Mr. Butterfield agreed that it would have been possible to transport the aircraft on the flatbed trailer, but only if the wings had been removed. He also agreed that a pilot should use his best efforts to be aware of all relevant air regulations.

[69] In redirect examination, I agreed to allow the entry of two Affidavits of Mr. Bradshaw as Exhibit A-6 since they had been mentioned in his earlier evidence without being formally introduced. I limited their value to being evidence only of Mr. Butterfield's state of belief as to the airworthiness of his aircraft and not as the truth of their content. I did, however, refuse to allow him to enter the pages of a log book relating to work done by Mr. Bradshaw on another aircraft that did not belong to him. At that point, Mr. Butterfield decided not to attempt to introduce any further evidence but stated as a result of this Ruling, he was unable to defend against the charges since the Minister's case rested on evidence generated by Mr. Bradshaw.

V. ARGUMENTS

A. Minister of Transport

[70] The Minister argues that the elements of each offence have been proven on a balance of probabilities. The evidence of Ms. Todd shows that the flight from Pitt Meadows to Boundary Bay took place on September 1, 2006. There was no flight authority in effect in relation to this flight contrary to the requirements of subsection 605.03(1) of the CARs. The only relevant flight authority available on that date was the Certificate of Airworthiness ("C of A") for the aircraft issued on July 29, 1988 (Exhibit M-8). Condition (6) of the C of A provides that "[u]nless expired, suspended or cancelled in accordance with the Air Regulations, this certificate shall remain in force so long as the aircraft identified above is maintained and certified airworthy in accordance with the Air Navigation Orders".

[71] The Air Regulations and the Air Navigation Orders were replaced by the CARs in 1996 and the Minister referred to section 44 of the Interpretation Act, R.S.C. 1985, c. I-21, for the proposition that to the extent that the substance of the former law was continued in the new legislation, it remained the law so that condition (6) continued to apply.

[72] The Minister explained how condition (6) was not met by tracing the various requirements set out in the CARs and associated Standards. Subsection 605.86(1) of the CARs prohibits the take‑off of an aircraft unless it has been maintained in accordance with a schedule set out in the Aircraft Equipment and Maintenance Standards. The applicable Standard is section 625.86 which sets out the requirement for an annual inspection to be completed by the end of the twelfth month after the previous annual inspection. The log books for the aircraft (Exhibits M-5, M‑5A and M-6) show maintenance releases for May 26, 2005 and October 23, 2006. Consequently, in the absence of compliance with the maintenance requirements, there was no flight authority in effect on September 1, 2006.

[73] The Minister argues that maintenance is a two‑fold process. With regard to the first offence, subsection 605.03(1), the required work must be done and then a maintenance release certifying that the work has been done must be signed by an AME, in accordance with section 571.10 of the CARs. He referred to the evidence of Messrs. Rosa, Braiden and Kondrosky in support of this statement. This two‑fold process must be completed before the aircraft is considered airworthy. Consequently, if both these requirements have not been met, and even if the work required for an annual inspection has been completed, it will be a contravention of subsection 605.03(1) if the aircraft has been flown without the maintenance release being completed.

[74] With regard to the second offence, subsection 605.94(1), the Minister argues that the evidence of Ms. Todd shows that the aircraft flew between Pitt Meadows and Boundary Bay on September 1, 2006. There is no entry in the log books concerning this flight which is clearly a violation of subsection 605.94(1) of the CARs (Exhibits M-5, M-5A, and M-6). He notes that there was a conflict in the evidence of Mr. Wenger who testified that Mr. Kondrosky had told him that the log entry had been completed; otherwise he would not have entered the aircraft. This is contrary to the testimony of Mr. Kondrosky who testified that the log entry had not been completed. The Minister suggests that the latter evidence should be given greater weight since it is direct evidence.

[75] The Minister also suggests that for Mr. Butterfield to rely on the verbal assurance of Mr. Bradshaw that everything was fine and that he could fly the aircraft was not in compliance with the Regulations. Reliance on verbal assurances from an AME could endanger safety. If a pilot could rely solely on verbal confirmation of an AME, that AME would not be accountable if there was a resulting accident.

[76] The Minister also addresses the defence of due diligence set out in section 8.5 of the Act. He refers to the Appeal Panel's decision in Wight v. Canada (Minister of Transport), 2006 TATC file no. C-3197-33 (Appeal) which recognized the correctness of the statement in Shermet v. Canada (Minister of Transport), 1996 CAT file no. C-1021-02 (Appeal), that once the party alleging the contravention has proved the constituent elements of a strict liability offence on a balance of probabilities, the onus shifts to the alleged offender to show on a balance of probabilities that he exercised all due diligence to avoid the commission of the offence.

[77] The Minister also referred to Lee v. Canada (Minister of Transport), 2008 TATC file no. W‑3287-33 (Review), where the Tribunal Member cited Canadian Airlines International Ltd. v. Canada (Minister of Transport), 1993 TATC file no. P-0168-50 (Appeal), where it was held that:

… section 8.5 provides that "all due diligence must have been exercised" and that "it is necessary to give meaning to the word ‘all' because it quantifies the behaviour expected from [the person charged] in order to benefit from the defence provided in section 8.5.

[78] In this matter there were numerous options open to Mr. Butterfield in the absence of the log book containing the maintenance release. He could have loaded the aircraft on the flatbed trailer brought for that purpose; he could have applied for a ferry permit; or he could have waited for Mr. Bradshaw to complete the entry and give him the log book. On this basis, an argument of due diligence must fail.

[79] With regard to the non-entry of the September 1, 2006 flight in the log book, it is a reasonable presumption that Mr. Butterfield did not make the entry because he knew that there was no completed annual inspection at the time of the flight and that, as a result, it was illegal to fly the aircraft. It is also reasonable to presume that he asked Mr. Sage to do an annual inspection because he knew that one had not already been done.

B. Applicant

[80] Mr. Butterfield argues that the Minister relies exclusively on hearsay evidence whereas Mr. Bradshaw's contemporaneous email (Exhibit A-4) is different from his log book entry (Exhibit M-5A). This is adequate to constitute evidence "to the contrary" within the meaning of section 28 of the Act so that the entry should not be taken as proof of the truth of its contents. Further, while there is no evidence as to when Mr. Bradshaw pasted the entries in Exhibit M‑5A into the log book, his contemporaneous Affidavit (Exhibit A‑6) together with Mr. Butterfield's own evidence is persuasive that a different entry sticker was prepared but not pasted in the log book. Finally, he submits that the documents excluded from evidence considered with Exhibit A‑6 would have provided a defence based on demonstrable dishonesty and unlawful practices of the person retaining the log book.

[81] With regard to the second count, he argues that just as Mr. Rosa testified that he did not charge him with flying the aircraft without the log book on board because he was not in possession of the log book, the same reasoning should apply so that he should not be charged with failing to make an entry in the log book when he was not in possession of that log book.

[82] In relation to the defence of due diligence, Mr. Butterfield argues that the defence as established in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299 has two aspects. The first is an honest and reasonable belief in facts that, if they were true, would render the act or omission innocent, and the second, that the alleged offender took all reasonable steps to avoid committing the offence. He is relying on the first branch for his defence. While the arguments put forward by the Minister rely on Tribunal cases that discuss the meaning of the second aspect of the defence, and including Lee, which relies on the definition in Black's Law Dictionary, Fifth Edition, an American publication, the defence of due diligence is a common law defence defined by the Supreme Court of Canada in Sault Ste. Marie and that this definition of due diligence must be applied by the Tribunal.

[83] Mr. Butterfield argues that his belief that the annual inspection was complete in both the physical and documentary sense was honestly and reasonably held in the light of his own evidence, and that he believes that this is so where it is evaluated from an objective standard. He further argues, however, that the proper standard for evaluation is subjective since that is the perspective from which a person's belief can negate mens rea. In support of this assertion, he cites R. v. Lane, 42 C.C.C. (2d) 375, heard in the Ontario Provincial Court, August 11, 1978.

[84] He further argues that as an aspect of due diligence, he was entitled to rely on the advice of a professional in the field and cites Midland Hutterian Brethren v. The Queen 1999 CanLII 351 (T.C.C) for this premise. While the Applicant admits that a pilot should have a good knowledge of the aviation regulations, few pilots can have the same knowledge as an AME with regard to matters relating to airworthiness, and most, as did the Applicant, would rely on the advice of an AME in such matters.

[85] He had no reason, at that point, not to believe Mr. Bradshaw. Mr. Butterfield suggests that evidence supporting the reasonableness of his belief can be found in Mr. Wenger's evidence that on the advice of Mr. Bradshaw's employee, he believed that the log book had been signed. His evidence on this point should be preferred to that of Mr. Kondrosky whose evidence was unclear and inconsistent. He also disputes Mr. Kondrosky's evidence that he was angry during their encounter and points out that his own evidence was that the meeting was amicable.

[86] The CARs do not include a requirement that a pilot see the log book prior to flight. The requirement is that the annual inspection be signed off in the log book. While he agrees that a verbal confirmation does not satisfy the requirement, he argues that in appropriate circumstances, such a verbal assurance can give rise to a reasonable belief that such is the case.

[87] In applying the due diligence defence to the second charge, he argues that there is uncontradicted evidence that he took every possible step to obtain the log book from Mr. Bradshaw and that it was reasonable for him to believe that Mr. Bradshaw would return it. He should not be held responsible for failure to anticipate the unlawful act of another. There is no reason to believe that he wilfully failed to make the entry as alleged by the Minister.

[88] With regard to the amounts of the penalty, the Applicant referred to the Aviation Enforcement Procedures Manual, part of which was entered as Exhibit M-10 by the Minister. He points out that, while Mr. Rosa testified that the specified penalty range was that set out in the table on page 117, the minimum penalty established on page 97 is $100 for individuals and even that amount is only a recommendation. Mr. Rosa's evidence was that it was his intention to be lenient but he chose to impose the maximum recommended penalty for each offence. There is no reason to impose any penalty above the minimum.

C. Minister's Reply

[89] In response to the argument that the definition of due diligence in Sault Ste. Marie applies as part of the common law, the Minister submits that the Act has primacy and section 8.5 defines due diligence for the purposes of the Act. It does not refer to reasonable belief but clearly states that a person claiming the defence of due diligence must "exercise all due diligence to prevent the contravention".

[90] With regard to count 2, while Mr. Butterfield may have taken steps to recover the log book, he did not include the flight in the replacement log book although he was diligent in recording all other matters. Furthermore, in his testimony, he stated that at the time of the flight, there was no point in asking for the log book and it was not a pressing matter in his mind.

[91] With regard to the airworthiness status of the aircraft, the Minister submits that while Mr. Wenger may have made his own determination on the matter, he had no authority to do so. Since Mr. Butterfield testified that he had found Mr. Bradshaw unreliable in the past, a prudent and diligent pilot would not have relied on a verbal confirmation on such an important safety matter.

[92] Furthermore, while recognizing that no charge was laid under section 605.95 that requires the log book to be carried on board the aircraft, when it is considered together with section 602.71 which requires a pilot to be familiar with the available information relating to the flight, Mr. Butterfield should have consulted the log book rather than relying on a verbal assurance.

[93] With regard to sanction, Mr. Rosa followed the table of sanctions and the Manager of Enforcement at the time did not find any mitigating factors that would cause a reduction in the maximum designated amount.

VI. ANALYSIS

[94] Exhibit M-9, an extract from the Canadian Civil Aircraft Register, shows that Mr. Butterfield is the registered owner of the aircraft C-GIPO and, indeed, there was no attempt to dispute this matter. Consequently, Mr. Butterfield was properly charged pursuant to subsection 8.4(1) of the Act.

[95] The first charge is an alleged breach of subsection 605.03(1) of the CARs of operating an aircraft in flight when there was no flight authority in effect in relation to that aircraft. In order to prove this contravention, the Minister must show that a flight took place and that there was no flight authority in effect at the time.

[96] The Minister relied on the evidence of Ms. Todd, a Unit Operations Specialist for Nav Canada at Boundary Bay airport, who referred to extracts from the NCAM (Exhibits M‑1 and M‑2), showing that aircraft C-GIPO took off from Pitt Meadows airport at 10:26 local time and landed at Boundary Bay airport at 10:46 local time on September 1, 2006.

[97] Mr. Butterfield suggested that this evidence was not reliable in that Ms. Todd did not make the entries herself, that at least earlier versions of Nav Canada's records were unreliable and that flights between the two airports normally lasted 20 minutes as opposed to the 40 minutes recorded. Nevertheless, in his own testimony, he referred to the flight as having taken place and so I find on a balance of probabilities that the flight between Pitt Meadows airport and Boundary Bay airport took place on September 1, 2006.

[98] The next element of the alleged contravention to be shown is that the aircraft was operated without a flight authority being in effect. There was no dispute that the flight authority in respect of the aircraft at that time was the C of A (Exhibit M-8). Condition 6 of this document provides that it "shall remain in force so long as the aircraft [C-GIPO] is maintained and certified airworthy in accordance with the Air Navigation Orders". The C of A was issued on July 29, 1988 and in 1996, the Air Navigation Orders were replaced by the CARs but there was no suggestion made by either party that the condition did not continue to apply.

[99] The legal trail leading to the conclusions that an annual inspection must be performed on the aircraft, and that a maintenance release certifying that the work was done must be signed by an AME before the condition in the Certificate of Airworthiness is met, is fairly complicated but unequivocal.

[100] First, subsection 605.85(1) prohibits the conduct of a flight after maintenance unless that maintenance has been certified by the signing of a maintenance release. Section 571.10 describes the requirements for and contents of a maintenance release; and subsection 571.11(1) sets out who may sign the release. Section 605.85 also prohibits flight unless the aircraft has been maintained in accordance with a maintenance schedule that conforms to the Aircraft Equipment and Maintenance Standards. The relevant standard is Standard 625.86. Paragraph (2)(a) states that the requirements of the maintenance schedule be carried out at not less than 12‑month intervals and the scheduled requirements are set out Part 1 of Appendix B to the Schedule.

[101] At the Review Hearing, the Minister offered little evidence as to whether the work required in the maintenance schedule had in fact been completed but rather relied on showing that the maintenance release had not been issued or signed. On this basis, the Minister argued that there were two components to maintenance; the actual work and the provision of a signed maintenance release. Virtually all the witnesses agreed with this position, even the Applicant's witness, Mr. Wenger, admitted that he knew that an aircraft needed to be "signed out" before it could be flown. The Minister then referred to the log books (Exhibits M-5, M-5A and M-6) to show that maintenance releases for annual inspections had been signed on May 26, 2005, and October 3, 2006, so that there was a period of more than 16 months between certified annual inspections.

[102] The Applicant recognized that there was no signed maintenance release that would make the flight authority effective on September 1, 2006, but argued that the entry pasted into the log book by Mr. Bradshaw (Exhibit M-5A) should be disregarded since there was "evidence to the contrary" that would bring it out of the application of section 28 of the Act. He also argued that Mr. Bradshaw's e-mail of September 2, 2006 (part of Exhibit A-4) is better evidence of the state of the aircraft on September 1, 2006. He also argued that the excluded evidence together with the Affidavits of Mr. Bradshaw introduced as Exhibit A-6 would give rise to a defence of demonstrable dishonesty on the part of the person retaining the log book. Presumably by such a defence, the Applicant intended to imply some sort of due diligence defence since another person's dishonesty does not in itself create a defence to a breach of the Regulations.

[103] The Applicant, however, relied primarily on a defence of due diligence. He pointed out that this is a defence established at common law and described in Sault Ste. Marie. That case distinguished among mens rea offences where a mental element must be proved; absolute liability offences, where only the facts of the offences must be proved for a conviction; and strict liability offences where, if the facts of the offence are proved, the offender might have a defence of due diligence. This defence was described as being available "if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event".

[104] It has long been accepted that most contraventions of the CARs, including those set out in the Notice, are strict liability offences. Once a defence of due diligence is raised, the onus shifts to the person relying on the defence to prove it on a balance of probabilities.

[105] The Minister argued that the defence of due diligence, as set out in section 8.5 of the Act, requires a person who has been found to have contravened a provision to show that he exercised "all due diligence" in order to be effective. He cited Wight where the Appeal Panel in paragraph [32] referred to the earlier decision of the Appeal Panel in Shermet. In that matter, it was stated at paragraph [18], "[t]his assertion respecting strict liability offences was set out in the case of R. v. Sault Ste. Marie and is also codified in section 8.5 of the Aeronautics Act".

[106] He also referred to Lee where the Member adopted the definition of "due diligence" set out in Black's Law Dictionary, and cited the earlier decision of Canadian Airlines International Ltd. where the Appeal Panel held that it was necessary to give meaning to the word "all" in the phrase "all due diligence" set out in section 8.5.

[107] The Applicant argued in response that the cases cited by the Minister dealt only with the second branch of the defence as enunciated in Sault Ste. Marie and that, in any event, section 8.5 could not override a defence that was part of the common law. In reply, the Minister argued that section 8.5 was paramount and defined the defence of due diligence for the purposes of the Act and its Regulations.

[108] Without deciding whether the common law or the statutory defence has precedence, I find that the intention of section 8.5 was to give recognition to the defence of due diligence as it was set out in Sault Ste. Marie. The nature of the defence of due diligence demands that it be considered in the light of the circumstances of the matter where it is argued and so the definition given to it in any matter must be considered as applying in those or similar circumstances. I note, however, in Shermet quoted in Wight, the Appeal Panel specifically states that the defence of due diligence was first set out in Sault Ste. Marie and then codified in the Act thus implying that it is the same defence of due diligence. In Minister of Transport v. Northern Manitoba Outfitters Ltd., 1992 CAT file no. C-0258‑41 (Review), the Tribunal Member referred to the reasonably held honest belief aspect of the defence of due diligence but determined that the belief was not reasonable in the circumstances of the case.

[109] The issue to be determined is whether either aspect of the defence of due diligence is available to exonerate the Applicant. The Minister has pointed out that there were several options available to the Applicant at the time of the flight. He had come prepared to remove the aircraft on a flatbed trailer if it was not ready. He could have obtained a ferry permit or he could have waited until the log book entry was completed. Any of these options would have met the regulatory requirements. As such, it cannot be said that he took "all reasonable steps to avoid the offence".

[110] The Applicant based his arguments of due diligence primarily on his reasonable belief that the maintenance release had been signed. In advancing this defence, he argued that the test for "reasonableness" of belief should be subjective rather than objective. He supported this position by referring to Lane. This case, however, involved a criminal prosecution for false pretences under the Criminal Code where the section under which the charge was laid provided for a defence of due diligence where "the accused had reasonable grounds to believe [the cheques] would be honoured". The Judge decided that since the belief went to showing that there was no mens rea, a subjective test for reasonableness would be appropriate. The Applicant was quite honest in pointing out that this was the only precedent that he could find on the issue.

[111] I believe that Lane should be distinguished from the current matter on the basis that it was decided in the context of determining whether the necessary mental element existed to prove a crime; whereas, there is no mental element necessary to show that a strict liability offence occurred. To the extent that there is a subjective mental element to the due diligence defence, it is related to the honesty of the belief not its reasonableness. I note that Sault Ste. Marie, in defining the defence of due diligence at page 1326, began by saying that it involved "consideration of what a reasonable man would have done in the circumstances". It seems clear that the intention of the definition was to include an objective standard for determining whether the belief was reasonable or not.

[112] In arguing that the belief was reasonable, the Applicant relied on his evidence concerning his telephone conversation with Mr. Bradshaw. He said that this belief was supported when he heard Mr. Kondrosky tell Mr. Wenger that the aircraft had been signed off (I note that Mr. Kondrosky cannot recall saying this). He further argued that in forming this belief he was entitled to rely on the advice of a professional in the field, and at that point, contrary to Mr. Kondrosky's evidence that he appeared angry, relations were amicable to the extent that he had no reason to disbelieve what he had been told.

[113] I find that the Applicant had no reasonable grounds to believe that the necessary maintenance release had been signed. In their telephone conversation, Mr. Bradshaw stated that the aircraft was "legal to fly" and that he was doing the paperwork at that time. The necessary implication from that statement was that the paperwork had not been completed so that there was not yet a maintenance release. Furthermore, there is no basis on which the Applicant could assume that Mr. Kondrosky was told that the maintenance release had been completed. Mr. Kondrosky's evidence was that Mr. Bradshaw simply told him to release the aircraft to the Applicant.

[114] Despite Mr. Kondrosky's failure to recall the matter, it seems clear that he participated in the pre-flight inspection and probably used words that led Mr. Wenger to believe that the necessary release had been given. Since there had been no further communication between Messrs. Bradshaw and Kondrosky, the Applicant should have been aware that he could give no assurances on the state of the paperwork.

[115] The Applicant has owned the aircraft at least since 1988, and so, while certainly not an expert in aircraft maintenance, he should have, over that period, become aware of the need for a maintenance release after work had been done on an aircraft. He could not rely on "expert" advice that the aircraft was "legal to fly" when he was told in the same conversation that the paperwork was in the course of preparation. While he pointed out that the meeting on September 1, 2006 ended amicably, it is probable that he was, as Mr. Kondrosky testified, quite angry when he arrived to find that the aircraft was not ready as had been promised. Whatever his feelings were at the time of departure, his evidence was that he had had several disputes with Mr. Bradshaw over his activities with regard to the aircraft and over delays.

[116] Bearing in mind this history, a reasonable man would not have relied on assurances that Mr. Bradshaw was doing the paperwork to assume that it would be completed by the time the aircraft took off. I note that in his evidence, the Applicant explained that at the time, obtaining the log book was not a pressing matter on his mind and that he was more concerned that his companions were eager to get going since they had other commitments.

[117] Based on the statement over the telephone by Mr. Bradshaw that he was doing the paperwork, there was a clear indication that the maintenance release had not been signed and given the long aviation experience of the Applicant, there is no reason to believe that he was not aware of the need for such a release. I find that a reasonable man in similar circumstances would not form a belief that the aircraft was "legal to fly" and so I find that on a balance of probabilities, the Applicant has not shown a defence of due diligence in relation to the first charge.

[118] The second charge alleged against the Applicant is that the particulars of the flight from Pitt Meadows to Boundary Bay on September 1, 2006 were not recorded in the journey log book in accordance with the requirements of subsection 605.94(1) of the CARs. The Minister showed that the journey log offered as Exhibits M-5, M-5A and M-6 did not show the flight. It is worth noting that the Applicant did not object to the application of section 28 of the Act to Exhibits M‑5 and M‑6. On this basis, I find that the Minister has proved on a balance of probabilities that the entries concerning the flight were not made, thus contravening the requirements of subsection 605.94(1).

[119] The Applicant, however, argued that the defence of due diligence applied in this situation. He pointed out that he made efforts to recover the log book on September 1, 2006, and over the next several days. He had no reason to believe at the time of the flight that there would be difficulties in obtaining the return of the log book. While all of this may be correct, it fails to explain why in creating Exhibit M-6, the replacement log book, no entry was made concerning the flight from Pitt Meadows to Boundary Bay.

[120] The Applicant made entries for flights in June and July 2005, and in 2006 noted that the aircraft was fit for a ferry flight and entered the flight from Boundary Bay (ZBB) to Vancouver (YVR) on October 11, 2006. Whether or not he omitted to enter the flight wilfully as alleged by the Minister, as a strict liability offence, the failure to make the entry is a breach of the CARs. There seems to be no reasonable explanation as to why the entry was not made in the replacement log book. Accordingly, I find that no defence of due diligence applies.

VII. SANCTION

[121] Paragraph 8(b) of the Act authorizes the Member of the Tribunal hearing the matter to establish the penalty if it is determined that there has been a contravention. In his evidence, Mr. Rosa explained that the Aviation Enforcement Procedures Manual (Exhibit M‑10) includes a Table of recommended penalty amounts for the breach of each designated provision. In assessing the recommended penalty for a first offence of subsection 605.03(1), he took into consideration that there were additional charges that he could have made in respect of the flight and that he considered that he was being lenient in only laying one charge.

[122] However, the Applicant pointed out that earlier in the Manual it was stated that the minimum penalty for an individual is $100 and that in his case, there was no reason to charge above that minimum. I note that the minimum of $100 is set out in a section of the Manual that deals with adjusting the recommended penalty to account for the gravity of the offence or any mitigating factors. While guidelines have no legal force, they are established, at least in part, to provide a means to determine penalties in a consistent manner.

[123] In this case, while the dealings between the Applicant and the AME involved may not have been ideal, he has argued that, at the time of the offence, he had no reason to suspect that Mr. Bradshaw would act improperly or retain his journey log book. In view of the Applicant's expressed determination to remove his aircraft on that date, and taking into account the other options available to him, I see no mitigating circumstances that would lead me to reduce the penalty of $1 000 relating to the breach of subsection 605.03(1). Similarly, there was no reasonable explanation given for the failure to make the entry of the September 1, 2006 flight in the replacement journey log book that would serve to mitigate the penalty of $750 assessed in respect of subsection 605.94(1).

VIII. DETERMINATION

[124] The Minister has proven, on a balance of probabilities, that the Applicant, Aidan Butterfield, did contravene subsections 605.03(1) and 605.94(1) of the CARs. Accordingly, the assessed monetary penalties of $1 000 and $750 respectively, for a total amount of $1 750, are upheld.

August 9, 2011

Elizabeth MacNab

Member


Appeal decision
J. Richard W. Hall, Stephen Rogers, Patrick T. Dowd


Decision: August 14, 2013

Citation: Butterfield v. Canada (Minister of Transport), 2013 TATCE 22 (Appeal)

Heard in: Vancouver, British Columbia, on November 6 to 8, 2012, and January 22 and 24, 2013

APPEAL DECISION AND REASONS

Held: The Appeal is dismissed as the Review Member's decision to uphold the penalties is reasonable and should not be overturned. The assessed penalties of $1 000 and $750 for Counts 1 and 2 are upheld, for a total penalty of $1 750.

The total amount of $1 750 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 Decision.

I. BACKGROUND

[1] On August 9, 2007, the Appellant was issued a Notice of Assessment of Monetary Penalty (Notice) by the Minister of Transport (Minister) for alleged contraventions of subsections 605.03(1) and 605.94(1) of the Canadian Aviation Regulations, SOR/96‑433 (CARs), pursuant to section 7.7 of the Aeronautics Act, R.S.C., 1985, c. A‑2 (Act).

[2] Schedule A to the Notice reads as follows:

1) On or about September 1, 2006 at approximately 10:26 hours local time, at or near Pitt Meadows, British Columbia, you Aidan Butterfield, operated an aircraft in flight when a flight authority was not in effect in respect of the aircraft, specifically, aircraft bearing Canadian registration mark C‑GIPO flew from Pitt Meadows airport to Boundary Bay airport when it was overdue for its annual inspection thereby contravening subsection 605.03(1) of the Canadian Aviation Regulations.

Monetary penalty assessed: $1000.00

2) On or about September 1, 2006 at approximately 10:26 hours local time, at or near Pitt Meadows, British Columbia, the particulars set out in column I of an item in Schedule I to this Division of the Canadian Aviation Regulations, were not recorded in the journey log at the time set out in column II of the item and were not recorded by the person responsible for making entries set out in column III of that item, specifically, a flight conducted in aircraft C‑GIPO on said date and location was not recorded in the journey log in the manner required by this regulation thereby contravening subsection 605.94(1) of the Canadian Aviation Regulations.

Monetary penalty assessed: $750.00

[3] The Appellant requested that the Transportation Appeal Tribunal of Canada (Tribunal) review the Minister's decision, and the Review Hearing occurred from October 18 to 21, 2010, after the Review Member had disposed of several preliminary Motions.

[4] In her Determination dated August 9, 2011, the Review Member held that the Minister had proven, on the balance of probabilities, that the Appellant had contravened subsections 605.03(1) and 605.94(1) of the CARs, and maintained the assessed monetary penalties of $1 000 and $750 respectively, for a total amount of $1 750.

[5] The Appellant appealed the Review Member's Determination on September 16, 2011, as well as some of the Rulings on Preliminary Motions by the Review Member.

II. PRELIMINARY ISSUES

A. Appellant's Motion on scheduling the Appeal Hearing

[6] On December 31, 2011, the Appellant sent a letter to the Tribunal requesting that “the date for hearing the appeal of this matter be set at least sixty days after the Minister has provided the access to information sought on the Appellant's September 7, 2010 request for access to information”. He submitted that this information was required in order for him to make full answer and defence to the matters raised in the appeal.

[7] The Minister did not object to the Appellant's request, although he reserved his right to object to any future motions made by the Appellant with regards to entering new evidence.

[8] In a Ruling dated January 31, 2012, the Chairperson of the Tribunal denied the Appellant's request, noting that the Appellant's Access to Information Request had been filed on September 7, 2010, which was prior to the Review Hearing in October 2010. The Chairperson noted that there was no request at that time to delay the Review Hearing pending receipt of this information.

[9] In his Ruling, the Chairperson found that “while the delay in receiving the information requested is unfortunate, the scheduling of this Appeal should not be dependent on that information being received, whenever that may be”.

B. Allegation of Bias #1

[10] At the outset of the Appeal Hearing on November 6, 2012, the Chairperson brought it to the Appellant's attention that he had attended a portion of the Review Hearing in order to observe the Review Member presiding over the Review Hearing. The Chairperson noted that he did not observe the entire Hearing and did not discuss any substantive issues with the Review Member. On this basis, the Chairperson asked the Appellant if he had any concerns of bias with regard to his taking part in the Appeal Panel.

(1) Appellant's Arguments

[11] The Appellant argued that he was indeed concerned about issues of bias, and asked the Chairperson to recuse himself from the Appeal Hearing. The Appellant submitted that because the Chairperson had observed the Review Hearing in order to observe the Review Member's conduct, and that the Review Member had since been reappointed to a new term, it is not appropriate for the Chairperson to decide on the issue of the Review Member's conduct, as the Chairperson clearly found her conduct to be fine, while the Appellant has challenged it. According to the Appellant, “I think it would be better served if it was heard by a panel who… didn't have your previous involvement with the Member in question”. The Appellant suggested that the Chairperson's views on the issues at hand might be influenced by his previous evaluation of the Review Member. Accordingly, he suggested that a reasonable apprehension of bias existed in this case.

[12] The Appellant then requested––and was granted––the opportunity to make further submissions on the issue of bias. He submitted that, according to section 14 of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29 (TATC Act), an appeal must be on the merits of the case and based on the record of the proceeding, and that the Chairperson may have been influenced when he observed the Review Member during the Review Hearing. According to the Appellant, the appeal must occur “on the record of the review proceedings, not on observations of those proceedings themselves by a member of the appeal panel”. He also noted that “a transcript can, and often does, convey a quite different image of a proceeding than does a live audit”. Consequently, the Appellant suggests that by attending a portion of the Review Hearing, the Chairperson must be disqualified from the Appeal Hearing, since it cannot be said that his consideration of the appeal is based solely on the record of the proceedings. He cited the Supreme Court of Canada decision of Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, (Newfoundland Nurses), in noting that transparency requires an administrative tribunal decision to be based on the proceedings before the tribunal and on the record of those proceedings only. Indeed, the Appellant submits that a decision must be based on the parties' submissions and the Tribunal's deliberations on those submissions.

[13] The Appellant also alleges that the Chairperson acted in a fashion that was not transparent by seeking legal advice from external legal counsel as to the propriety of his participation on the Appeal Panel. According to the Appellant:

Here a panel member has sought legal advice in advance and come to…this Hearing to report that he is satisfied that his legal advisor has, off the record of the proceeding, given him the correct answer to a procedural question which should have been decided only by the [Appeal] Panel itself independently and on the basis of submission by the parties and on the record.

(2) Minister's Arguments

[14] In response, the Minister notes that none of the Appellant's grounds of appeal relate to any issues regarding the Member's conduct. Rather, the issues in question were issues of law, fact, or mixed fact and law. As such, the Minister states that he had no objection to the Chairperson hearing the appeal and argued that the Appellant's objection is not well‑founded.

[15] The Minister submits that there is a difference between how the Review Member conducted the Hearing and how she evaluated the case, and argued that she did her job properly even though she came to a different conclusion than the Appellant desired. There was no reasonable apprehension of bias in this instance.

[16] With regard to the Appellant's modified arguments relating to bias, the Minister submits that the Chairperson acted in a transparent fashion in disclosing his brief observation of the Review Hearing. He notes that the Minister has no concern with regard to any conflict of interest or apprehension of bias. Furthermore, he notes that the arguments during the Review Hearing occurred towards the end of the Hearing and that the Chairperson observed only the start of the Review Hearing; as such, he could not have been influenced by the arguments.

(3) Ruling

[17] The Appeal Panel has determined that the Appellant has failed to establish any demonstrable concern of a reasonable apprehension of bias in this instance.

[18] With regard to the Appellant's original argument regarding bias, the Appeal Panel agrees with the Minister's argument that because the conduct of the Review Member is not included in the grounds for appeal in this instance, there is no reasonable apprehension of bias stemming from the Review Member's reappointment for a further term at the Tribunal. Moreover, the Appeal Panel notes that appointments and reappointments to the Tribunal are not controlled by the Tribunal or the Chairperson.

[19] With regard to the Appellant's modified grounds for allegation of bias, the Appeal Panel notes that there are several circumstances in this instance that point away from the existence of a reasonable apprehension of bias, including the amount of time that has passed since the Review Hearing, the fact that the Chairperson did not observe the entire Review Hearing, as well the fact that he did not take part in or discuss the Review Determination with the Review Member.

[20] Based on these factors, the Appeal Panel has determined that no reasonable apprehension of bias has been demonstrated. Accordingly, the Chairperson declined to recuse himself from the Appeal Hearing, and the Appeal Hearing proceeded as scheduled.

C. Allegation of Bias #2

(1) Appellant's Arguments

[21] The Appellant made a further allegation of bias against the Chairperson of the Tribunal towards the end of the Appeal Hearing. The Appellant notes that the Ruling on his January 31, 2012 request was written by the Chairperson. The Appellant states that in this Ruling, the Chairperson mischaracterizes the Appellant's request for notification as being an intention to introduce new evidence at appeal. The Appellant suggests that this is not a proper characterization, and that his request was “simply a request that the applicant not be again forced to proceed to a hearing for which he has not been allowed access to the information needed to prepare his case and to make full answer and defence”.

[22] The Appellant also submits that the Appeal Panel incorrectly characterized his request for pre-hearing access to relevant documents as being a request for delay of the Appeal Hearing, and in so doing, demonstrates an “unqualified agreement with the [Review Member's] opinion that the Applicant was instrumental in causing the delay”. The Appellant submits that the Chairperson's ruling on this point constitutes “a premature decision on a point in contention. That is, bias on the part of the Member”.

[23] The Appellant objects to the fact that neither the Chairperson's ruling on this issue, nor any other communication from the Tribunal, advised him that the person who made the Ruling was going to be a member of the Appeal Panel. He states that “the premature judgement evident in the consideration is properly seen as prohibiting [the Chairperson's] participation in the Appeal Panel”. He notes that he only recently realized this issue, and argues that the Tribunal should have drawn his attention to this matter.

(2) Minister's Arguments

[24] The Minister disputes the Appellant's characterization of his request as not relating to a delay, noting that when access to additional documentation is required, an applicant is implicitly requesting that the Tribunal postpone a review or appeal hearing. The Minister agrees with the Tribunal's Ruling on the matter, which stated that “while the delay in receiving the information requested is unfortunate, the scheduling of this Appeal should not be dependent on that information being received, whenever that may be”.

[25] Moreover, the Minister submits that the Appellant should have raised this issue on the first day of the Appeal Hearing rather than at the end. He submits that because the Appellant did not raise the issue at the first opportunity, his motion should be rejected.

(3) Ruling

[26] The Appellant's argument on this point is dismissed. The Appeal Panel notes that the Ruling dated January 31, 2012, does not characterize the Appellant's request as seeking a delay as suggested by the Appellant. As such, the Appellant's allegation of bias is unsupported.

D. Appellant's Motion on making further arguments

[27] On the final day of the Appeal Hearing, the Appellant requested the opportunity to make further submissions upon receiving the Appeal Hearing transcript as he was “unable to say for certain that he has understood and responded to the case being made by the Minister”.

[28] The Appeal Panel denied the Appellant's request by way of an Interlocutory Ruling dated February 15, 2013. The Appeal Panel refused the Appellant's motion for a variety of reasons, including that: a) the Appellant was provided a copy of the Minister's written submissions and has had the opportunity to reply to them; b) these written submissions were created in response to the Appellant's own grounds for appeal; c) the burden in this case is on Mr. Butterfield to demonstrate errors in the Review Determination; and d) pursuant to subsection 15(1) of the Transportation Appeal of Canada Rules, SOR/93‑346, this motion must be denied so that the matter can be settled in an expedient manner.

III. REVIEW DETERMINATION

A. Preliminary Motions – Rulings by the Review Member

(1) Motion #1

[29] A teleconference occurred on March 23, 2009. The three issues raised by the Appellant in this call included: 1) whether the Minister was required to call Don Bradshaw as a witness at the Review Hearing; 2) whether the Minister was required to provide the name of an alleged witness; and 3) whether the Minister had provided a complete list of witnesses to the Appellant.

[30] In her Ruling dated March 26, 2009, the Member who conducted the teleconference declined to made an order that the Minister was required to call Mr. Bradshaw as a witness, and also declined to make a finding that she must make an adverse inference against the Minister for his failure to call Mr. Bradshaw. The Member also found that the Minister had provided a complete witness list.

[31] The Member invited the Appellant to make a written application to the Tribunal to request further disclosure by the Minister.

(2) Motion #2

[32] The Appellant then filed a motion with regard to disclosure on April 1, 2009. Following a teleconference with the Appellant and Minister on December 4, 2009, the Review Member submitted her Ruling on February 12, 2010, regarding the Appellant's request for disclosure, denying several of his requests. However, the Review Member determined that “any undisclosed notes of conversations or correspondence with Mr. Bradshaw, that were part of the investigation, should be provided to Mr. Butterfield”. Furthermore, the Review Member ordered the Minister to disclose “any notes of conversations with Messrs. Kondrosky and Braiden, made during the course of the investigation”. Finally, the Review Member found that the Minister should determine if any correspondence existed between the Minister and ZGF airport personnel with regard to this matter, and that if such correspondence existed, the Review Member would hear the Minister's arguments with regards to its relevance.

(3) Motion #3

[33] In his final interlocutory Motion, dated May 14, 2010, the Appellant requested that the proceedings be stayed or dismissed for reasons of delay and/or abuse of process. As well, the Appellant sought the exclusion of a statement of complaint provided to the Minister in April 2007. The Appellant also sought an order that the Minister provide him with the addresses of the witnesses in this case.

[34] In considering the Appellant's allegation of delay, the Review Member found in her Ruling of September 21, 2010, that the proceedings had commenced within the limitation period set out in the Act. She also found that any pre-trial delays in this case were attributable to both parties, and were not so unreasonable as to justify dismissing the action. Moreover, the Review Member held that the Minister is justified in considering any complaint, even if it is made some time after a matter has arisen. Furthermore, the Review Member found that the Minister acted reasonably on the basis of the information before him, and that no abuse of process had occurred. As such, the Motion with regard to an abuse of process was dismissed.

[35] The Review Member dismissed the Appellant's request to exclude the statement of complaint, but noted that the matter could be argued further at the Review Hearing.

[36] Finally, with regard to witness contacts, the Review Member determined that the Privacy Act, R.S.C., 1985, c. P‑21,prohibits disclosure of a person's address without their consent, and on this basis, the Appellant's request on this issue was denied as well.

B. Evidentiary Issues during the Review Hearing

(1) Appellant's Objection to the introduction of evidence

[37] During the Review Hearing, the Appellant objected to the Minister's attempt to admit the last two pages of the log book of C‑GIPO (Exhibit M‑5), which contains a list of work done by Mr. Bradshaw. This list of work was signed by Mr. Bradshaw. The Appellant objected to the introduction of this evidence, arguing that these log book entries were hearsay. He further argued that the Tribunal should apply the “principled approach” to the admission of this hearsay evidence.

[38] The Appellant argued that the wording of section 28 of the Act creates a presumption of truth only in the absence of evidence to the contrary, and that there is much evidence to the contrary in this case, which results in the non-application of section 28.

[39] While the Minister agreed that section 28 would not prevail over evidence to the contrary, he argued that such evidence would have to be presented to the Tribunal as a part of the Appellant's defence.

[40] At paragraph [50] in her Determination on this matter, the Review Member ruled against the Appellant's objection, finding that:

Section 28 creates a presumption of the truth of entries that are required to be made. It is based on the assumption that such records are so likely to be reliable that they can be considered as proof of their contents as against the persons set out in the section whether or not they could be considered as hearsay.

[41] The Review Member allowed the pages to be admitted on this basis, and noted that none of the questions asked by the Minister related to these entries, and also that Claudio Rosa replied in the negative when asked whether any of his testimony would change in light of these entries.

(2) Appellant's Request to Introduce Evidence

[42] During the Review Hearing, the Appellant attempted to enter into evidence two pages of the log book of aircraft C-FPVW, a notification dated April 18, 2000, an inspection snag sheet, and an email, all of which he contended were documents he had recovered from Transport Canada from an access to information request. The Appellant stated that the log book contained entries made by Mr. Bradshaw regarding work he had done on an aircraft. He stated that he sought to admit this evidence to demonstrate Mr. Bradshaw's “previous history of making inaccurate… logbook entries”, and submitted that this evidence spoke to the credibility of the log book entry in the case at hand.

[43] The Minister objected to the Appellant's request to admit this evidence on the basis that the log book the Appellant was attempting to enter into evidence was not for the aircraft involved in the case at hand, and as such, was irrelevant.

[44] The Review Member did not allow the admission of this evidence, finding that this evidence was beyond the scope of the Appellant's personal knowledge, and that it was also beyond the scope of relevance to the Hearing.

[45] While she acknowledged that the evidence could perhaps be relevant to the issue of Mr. Bradshaw's credibility, she noted that “I'm not sure that this would be able to have any effect on a finding”, and that “I don't think I can make any finding concerning Mr. Bradshaw's credibility”. She also noted that she could not accept the email evidence without either the sender or the person to whom the email was addressed being present to testify.

[46] In light of the Review Member's Determination on this issue, the Appellant found that there was little point in attempting to enter his other documents into evidence, as they were intended to impugn Mr. Bradshaw's credibility. In response to the Review Member's Determination on this point, the Appellant stated that “I find myself in consequence of this ruling in a position of being unable to defend against the Minister's case”.

C. Review Determination – Review Member's Analysis

[47] The Review Member found that the Minister had proven that the Appellant had contravened subsections 605.03(1) and 605.94(1) of the CARs as alleged, and she consequently upheld the monetary penalties of $1 000 and $750, respectively.

[48] With regard to the first offence, the Review Member was satisfied that the flight had taken place as alleged, and noted that the Appellant referred to the flight taking place in his own testimony. As such, she was satisfied that this element of the offence had been proven.

[49] With regard to the issue of a flight authority, the Review Member noted that:

The legal trail leading to the conclusion that an annual inspection must be performed on the aircraft, and that a maintenance release certifying that the work was done must be signed by an AME before the condition in the Certificate of Airworthiness is met, is fairly complicated but unequivocal.

[50] The Review Member noted that the Minister offered little evidence as to whether or not the required work had been done, but rather relied on demonstrating that the maintenance release had not been issued or signed. Indeed, the Minister demonstrated that the last maintenance releases for an annual inspection had been signed on May 26, 2005, and October 3, 2006, leaving a period of more than 16 months between inspections.

[51] The Appellant acknowledged that there was no signed maintenance release to make the flight authority effective on September 1, 2006, but argued that the entry pasted into the log book by Mr. Bradshaw should be disregarded since there was, according to the Appellant, “evidence to the contrary”, that would render section 28 of the Act inapplicable.

[52] The Appellant also argued a defence of due diligence, stating that he could rely on this defence if he “reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event”.

[53] In consideration of this defence, the Review Member found that there were several options available to the Appellant for moving the aircraft, including using the flatbed trailer he had brought with him, obtaining a ferry permit, or waiting until the log book entry had been completed. According to the Review Member, “any of these options would have met the regulatory requirements. As such, it cannot be said that he took ‘all reasonable steps to avoid the offence'”.

[54] The Review Member noted that the Appellant based his arguments of due diligence on his purportedly reasonable belief that the maintenance release had been signed. He suggested that the “reasonableness” of his belief in this instance should be subjective rather than objective, relying on R. v. Lane, 42 C.C.C. (2d) 375(Lane)to argue this point. However, the Review Member noted that Lane is distinguishable from the matter at hand, as it was a criminal matter dealing with the issue of whether the necessary mental element existed to prove a crime. She held that this is distinguishable from the present case because there is no mental element necessary to prove the occurrence of a strict liability offence. As such, the Review Member held that “to the extent that there is a subjective mental element to the due diligence defence, it is related to the honesty of the belief not its reasonableness”. Moreover, the Review Member noted that the definition for a defence of due diligence in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299(Sault Ste. Marie)includes a “consideration of what a reasonable man would have done in the circumstances”. As such, the Review Member notes that “the intention of the definition was to include an objective standard for determining whether the belief was reasonable or not”.

[55] In considering the application of this defence, the Review Member held that the Appellant had no reasonable grounds to believe that the necessary maintenance release had been signed. She noted that the Appellant had been told by Mr. Bradshaw that the aircraft was “legal to fly” and that he was doing the paperwork at that time. According to the Review Member, “[t]he necessary implication from that statement was that the paperwork had not been completed so that there was not yet a maintenance release”. Moreover, the Review Member found that “there is no basis on which the Applicant could assume that [James] Kondrosky was told that the maintenance release had been completed. Mr. Kondrosky's evidence was that Mr. Bradshaw simply told him to release the aircraft to the Applicant”.

[56] The Review Member further noted that “[d]espite Mr. Kondrosky's failure to recall the matter, it seems clear that he participated in the pre-flight inspection and probably used words that led Mr. Wenger to believe that the necessary release had been given. Since there had been no further communication between Messrs. Bradshaw and Kondrosky, the Applicant should have been aware that he could give no assurances on the state of the paperwork”.

[57] The Review Member also found that the Appellant should have been aware of the need for a maintenance release after work had been done on the aircraft. She held that the Appellant could not rely on what he referred to as “expert” advice that the aircraft was “legal to fly” when he was told in the same conversation that the paperwork was in the course of preparation. She also noted that it is probable that the Appellant was, as testified by Mr. Kondrosky, “quite angry” when he arrived to find that the aircraft was not ready as promised, contrary to the Appellant's evidence that the meeting on September 1, 2006, ended amicably.

[58] In considering the context of the dispute, the Review Member found that “[b]earing in mind this history, a reasonable man would not have relied on assurances that Mr. Bradshaw was doing the paperwork to assume that it would be completed by the time the aircraft took off”.

[59] In summary, at paragraph [117], the Review Member noted that:

Based on the statement over the telephone by Mr. Bradshaw that he was doing the paperwork, there was a clear indication that the maintenance release had not been signed and given the long aviation experience of the Applicant, there is no reason to believe that he was not aware of the need for such a release. I find that a reasonable man in similar circumstances would not form a belief that the aircraft was “legal to fly” and so I find that on a balance of probabilities, the Applicant has not shown a defence of due diligence in relation to the first charge.

[60] In considering the second charge, regarding subsection 605.94(1) of the CARs, the Review Member noted that the log book (Exhibits M‑5, M‑5A and M‑6) did not contain the particulars with regard to the flight that occurred on September 1, 2006. As such, the Review Member determined that the Minister had proven the contravention on the balance of probabilities.

[61] The Appellant brought forward a defence of due diligence on this issue, arguing that he made efforts to recover the log book on September 1, 2006, and over the next several days thereafter. He also argued that he had no reason to believe at the time of the flight that he would have difficulties obtaining the return of the log book. On this point, the Review Member held that “while all this may be correct, it fails to explain why in creating Exhibit M‑6, the replacement log book, no entry was made concerning the flight from Pitt Meadows to Boundary Bay”. The Review Member found that whether or not the Appellant had wilfully omitted to enter the flight, the failure to make such an entry is a breach of the CARs. Considering the Appellant's defence of due diligence, she held that “there seems to be no reasonable explanation as to why the entry was not made in the replacement log book. Accordingly, I find that no defence of due diligence applies”.

[62] The Review Member also found that the sanctions established by the Minister were reasonable. In considering the sanction for the first contravention, the Review Member found that Mr. Rosa took into consideration the additional charges that could have been made with respect to the flight, and that he considered it lenient to be laying only one charge in respect of the flight.

[63] The Appellant argued that there was no reason to charge above the minimum penalty of $100. However, the Review Member determined that “I note that the minimum of $100 is set out in a section of the [Aviation Enforcement Procedures Manual]that deals with adjusting the recommended penalty to account for the gravity of the offence or any mitigating factors”.

[64] Moreover, the Review Member stated that “[i]n view of the Applicant's expressed determination to remove his aircraft on that date, and taking into account the other options available to him, I see no mitigating circumstances that would lead me to reduce the penalty of $1 000 relating to the breach of subsection 605.03(1)”. Similarly, she found that there was “no reasonable explanation given for the failure to make the entry of the September 1, 2006 flight in the replacement log book that would serve to mitigate the penalty of $750 assessed in respect of subsection 605.94(1)”.

IV. GROUNDS FOR APPEAL

[65] The Appellant's Notice of Appeal was filed on September 16, 2011, and alleges that the Tribunal erred in the following ways:

  1. (a) finding the proceeding was commenced when notice of the assessment of a monetary penalty was delivered to the postal service on August 10, 2007;

(b) finding the proceeding was commenced within the limitation period established by s. 26 of the Aeronautics Act;

2.  (a) finding the delay between the time the Minister first became aware of the alleged contravention and “the time the Notice was issued” was reasonable;

(b) making that finding in response to the Applicant's application for relief in respect of the delay between the time the Minister first became aware of the alleged contravention and the time the hearing was held;

  1. (a) finding that the Minister acted reasonably on the basis of information provided him by Donald Bradshaw;

(b) finding that the Minister's proceeding against the Applicant was not an abuse of process;

  1. (a) ruling that the Minister be allowed a third opportunity to make out a case on the motion to exclude the statement, after the Minister had twice failed to do so on the two previous opportunities afforded him;

(b) dismissing the Applicant's motion for exclusion of the statement made to the Minister's investigator;

  1. (a) finding that the provisions of the Privacy Act prohibit disclosure of the addresses of the witnesses to be called in the Minister's proceeding against the Applicant;

(b) ruling against the Applicant's request that the Minister provide the addresses of witnesses to be called by the parties to the proceeding, which addresses are known to the Minister;

  1. ruling against the Applicant's objection to the introduction into evidence of Mr. Bradshaw's entry on the last two pages of the Applicant's journey log, Minister's Exhibit M‑5 (the “Bradshaw hearsay”);
  1. ruling that the Applicant be prohibited from entering evidence which would tend to diminish the credibility of the Bradshaw hearsay;
  1. finding that the Applicant had not established a defence of due diligence with respect to Count 1;
  1. finding that the Applicant had not established a defence of due diligence with respect to Count 2;
  1. (a) accepting the erroneous explanation by the Minister's witness of the table of recommended penalty amounts;

(b) upholding the Minister's imposition of the maximum available penalty in respect of Count 1;

(c) upholding the Minister's imposition of the maximum available penalty in respect of Count 2;

and such additional grounds as may become apparent and will be advised.

To obtain material information not produced on the Minister's disclosure in this matter, the Applicant, on September 7, 2010 submitted to the Minister a request for access to information (TC File No. A‑2010‑00226/SP) which, a year later, the Minister has not yet complied with. The Applicant requests that the hearing of this Appeal be set for a date at least 60 days after the Minister has provided the access to information sought on the September 7, 2010 request.

[66] At the Appeal Hearing on November 7, 2012, the Appellant stated that he no longer intended to pursue grounds 4 and 5 of his appeal.

V. ISSUES

[67] 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 treatment of evidentiary issues reasonable?
  3. Did the Member err in finding that the proceedings were instituted within the 12‑month limitation period provided for in the Act?
  4. Was the Review Member's finding with regard to pre-hearing delay reasonable?
  5. Was the Review Member reasonable in finding that no defence of due diligence was appropriate for Count 1?
  6. Was the Review Member reasonable in finding that no defence of due diligence was appropriate for Count 2?
  7. Did the Review Member reasonably determine that no abuse of process existed in this case?
  8. Were the penalties levied against the Appellant reasonable?

VI. ARGUMENTS

A. Appellant

(1) Standard of Review

[68] The Appellant submits that the issues to be considered in this case are mainly issues of law, and as such, no deference should be accorded to the Review Member. He further submits that this case is primarily about natural justice and procedural fairness.

[69] The Appellant submits that the issue regarding the limitation period is a jurisdictional issue, and as such, should be considered on a standard of correctness. Similarly, he submits that the Review Member's interpretation and application of case law should be considered on a standard of correctness.

[70] With regard to the issue of Mr. Bradshaw's credibility, the Appellant submits that the Appeal Panel cannot defer to the Review Member where there has been no finding of credibility made regarding conflicting evidence. Moreover, he argues that the Appeal Panel cannot make its own assessment of credibility because the Chairperson attended a portion of the Review Hearing. The Appellant submits that “any credibility assessment at this stage cannot be made on the basis of the record that was before the Review Tribunal alone but is necessarily tainted by the appeal member's own observations at the Review Hearing itself”.

[71] When considering the issue of abuse of process, the Appellant submits that the appropriate standard of review is correctness since this issue is of central importance to the legal system and is outside of the Review Member's specialized expertise, pursuant to Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir). Similarly, the Appellant submits that the Review Member's decision to admit and exclude evidence should be reviewed on a standard of correctness.

[72] On the issue of the legal content and definition of the defence of due diligence, the Appellant submits that correctness is the appropriate standard on which to review this issue.

[73] The Appellant also submits that correctness is the appropriate standard on which to consider the issue of the appropriate penalty, as the Review Member incorrectly interpreted the contents of the Aviation Enforcement Procedures Manual (Manual)and its guidelines and came to a conclusion that is at odds with previous Tribunal penalty assessments.

(2) Evidentiary issues: the Review Member erred in allowing the “Bradshaw hearsay” into evidence, but then refusing to admit the Appellant's evidence

[74] The Appellant contends that the Review Member erred in allowing the last two pages of the aircraft log book into evidence. The Appellant submits that the Review Member failed to provide adequate reasons for doing so, and also arrived at an unreasonable conclusion on this point.

[75] The Appellant submits that the issue to be determined is whether he had “evidence to the contrary” pursuant to section 28 of the Act. He further submits that the Review Member erred in allowing the “Bradshaw hearsay” into evidence, as the Review Member ignored the requirement under section 28 that there be an “absence of evidence to the contrary”. The Appellant alleges that the Review Member's decision on this point is due to her perception that there was no evidence to the contrary, and that “a reviewing panel must infer from the Reasons that the evidence that was absent was the evidence which the panel refused to admit”.

[76] The Appellant submits that the Review Member erred in acknowledging that the evidence he wished to submit on this point would have greatly influenced her decision, but then refused to accept the evidence when he tried to put it before her. The Appellant argues that this was “evidence to the contrary” pursuant to section 28 of the Act.

[77] While the Review Member refused to accept the Appellant's evidence on this point because she determined she could not make a finding on Mr. Bradshaw's credibility without him being present, the Appellant alleges that he was attempting to impugn the credibility of the log book entry rather than the credibility of Mr. Bradshaw himself.

[78] Moreover, the Appellant contends that he was in a position to attest to the authenticity of the documents he attempted to bring into evidence, and that these documents were relevant to the issue of the reliability of the “Bradshaw hearsay”. The Appellant notes that the Minister did not bring Mr. Bradshaw as a witness and also refused to give the Appellant his address for the Appellant to subpoena him. According to the Appellant, he “made extensive efforts to serve Mr. Bradshaw a subpoena and had been unable to do so”.

[79] The Appellant submits that, in the absence of Mr. Bradshaw, the only real evidence to counter the presumption of section 28 would be the evidence the Appellant sought to enter. He further argues that this evidence is both necessary and reliable, and that the Review Member's reasons for excluding this evidence were inadequate.

[80] The Appellant suggests that as the Review Member failed to provide any specific reason for her conclusion, the unreasonableness of the decision can be inferred. Indeed, as noted by the Appellant, “to the extent that the [Review Member's] decision was based on the stated understanding of the issues advanced by the Applicant, the conclusion was necessarily unreasonable.”

[81] The Appellant contends that the “Bradshaw hearsay” is highly relevant, as without it there is no direct evidence for either offence.

[82] The Appellant relies on jurisprudence to determine what constitutes evidence to the contrary, and finds that only “some” or prima facie evidence is required (See Allen Airways Ltd. v. Canada (Minister of Transport), TATC file no.: O‑3486‑18, 2009 TATCE 18 (Review), and Messner v. Canada (Minister of Transport), 2005 TATC file no.: P‑2945‑02 (Appeal)). The Appellant submits that he possessed a variety of evidence to the contrary, including affidavits from himself and Mr. Bradshaw, as well as other documentation, most of which was in the binder of material the Review Member refused to accept into evidence. The Appellant submits that, in the face of this “evidence to the contrary”, the log book entry is not covered by section 28.

[83] Furthermore, the Appellant contends that the “Bradshaw hearsay” is neither necessary nor reliable, and that the only corroborating evidence produced by the Minister is “the obviously unreliable double hearsay of Mr. Kondrosky”.

[84] The Appellant submits that there is a sufficiency of evidence to the contrary in this case that disqualifies the log book from entry into evidence on the basis of section 28 of the Act. Consequently, he contends that the burden to prove the necessity and reliability of this evidence remains with the Minister.

(3) Limitation Period: The Review Member erred in finding that the proceedings began within the limitation period

[85] The Appellant submits that the Review Member erred in determining that the proceedings began when the Notice was delivered to the postal service on August 10, 2007, and subsequently in finding that the proceedings were started within the limitation period established by section 26 of the Act.

[86] The Appellant submits that the Review Member's errors in this instance included: a) failing to sufficiently evaluate the evidence before her; b) failing to assess and report her assessment of the credibility of the evidence; c) making an incorrect finding with regard to the law; d) failing to provide sufficient reasons for her finding and; e) reaching an unreasonable conclusion which was not supported by the evidence.

[87] The Appellant submits that the Review Member's decision turns on a single point of evidence, which is that the Minister notified the Appellant of his decision by registered mail at the Appellant's latest known address. The Appellant submits that the Review Member's decision on this issue incorporates a necessary finding that the Minister met the requirements of subsection 7.7(1) of the Act, which was based on a finding that the Notice was delivered to the postal service on August 10, 2007. The Appellant submits that there was no sufficient evidence on which this finding could have been made, and that the Review Member erred in failing to expressly evaluate the conflicting evidence on this point and provide her assessment of the credibility of the evidence.

[88] The Appellant argues that the Review Member erred in accepting Mr. Rosa's July 8, 2010 affidavit, as it was not a rebuttal of the statements in the Appellant's affidavits, but rather presented new evidence on ancillary matters. According to the Appellant, “important factual elements of this proceeding have relied on incorrect statements of fact made by Mr. Rosa”. For instance, the Appellant submits that he made no admission to Mr. Rosa that the aircraft was overdue for an inspection as it is claimed in Mr. Rosa's affidavit, and further, that Mr. Rosa did not advise him that section 605.93 of the CARs should be used as a guideline for the log book consolidation procedure as it is claimed in Mr. Rosa's affidavit.

[89] The Appellant submits that Mr. Rosa's misstatements were not of a minor or ancillary nature, but contends that Mr. Rosa's alleged misstatement regarding the Appellant's admission of expired airworthiness is an important part of the Minister's case against the Appellant's defence of due diligence.

[90] The Appellant submits that the Review Member's finding that the Notice was delivered to the postal service on August 10, 2007, was based entirely on Mr. Rosa's claim to this effect. In making this claim, the Appellant submits that “Mr. Rosa appears to be relying exclusively on that memory which has failed him so completely in respect to the other statements in his affidavit”.

[91] Furthermore, the Appellant argues that Mr. Rosa did not explain why he might have put the correct address on this mail item when his other mailed correspondence to the Appellant had all been incorrectly addressed.

[92] The Appellant submits that the Review Member failed to address a number of important circumstances when accepting the statements in Mr. Rosa's affidavit regarding his mailing a letter, including the fact that he stated the letter was mailed on August 9, 2007, but that the tracking sheet only shows an item being sent on August 10, 2007, as well as the fact that the other two items of correspondence Mr. Rosa sent were both incorrectly addressed.

[93] The Appellant suggests that Mr. Rosa's likely error in addressing the mail excludes it from having met the requirements of subsection 7.7(1) of the Act that the Notice be sent to the “latest known address”. While the Review Member considered that the Notice itself was correctly addressed and found, in the Appellant's words, that there was “no reason to suppose that it's any different than the one that was mailed”, the Appellant argues that the address on the Notice itself is irrelevant, rather it is the address on the envelope that is important.

[94] The Appellant submits that the Notice was faxed to and received by him after the limitation period, and that the alleged “incorrectly addressed” mailed version of the Notice did not arrive. The Appellant also submits that:

Mr. Rosa's affidavit gives no sufficient evidence of any notice of assessment having been sent to the Applicant at his latest known address or at all…. on the evidence, the [Review Member] came to an unreasonable conclusion on this essential point, and… the [Review Member's] decision should be set aside on that ground.

[95] The Appellant then considered the legal requirements of subsection 7.7(1) of the Act, arguing that in order to institute the proceedings, the Minister must make the person aware of his decision within 12 months. He submits this argument is upheld in Brière v. Canada Employment & Immigration Commission, [1989] 3 FC 88. Moreover, he argues that “the most minimal diligence would have had the Minister obtaining notice of delivery failure well before prescription, rather than waiting until he was too late on September 14 [2007]”.

[96] The Appellant submits that the Appeal Panel must consider whether the Minister complied with his statutory obligation to notify the Appellant of his decision to assess a monetary penalty against the Appellant within the one‑year limitation period. Furthermore, the Appellant argues that Edgcumbe v. Canada (Minister of Transport), 2008 TATC file no.: W‑3219‑37 (Review), is distinguishable from this case, while Thow v. Canada (Minister of Transport), 2007 TATC file no.: P‑CERT‑0123 (Ruling) and Canada (Minister of Transport) v. Brookes, 1993 CAT file no.: O‑0367‑33 (Review and Appeal)do not apply, since Thow was an uncontested proceeding and “not the product of the full adversarial process”, and since Brookes considered and relied on the former wording of the Act.

[97] The Appellant argues that the Federal Court case of Insight Instrument Corp. v. Canada (Minister of Transport),2008 FC 109 (Insight),is valuable in this instance, as it held that a 12‑month limitation period runs from the date of the alleged offence to the date the offender is informed of the assessment of monetary penalty. Moreover, the Appellant submits that the findings in Insight accords with the Federal Court's findings in Brière, and that the Tribunal is bound by the Federal Court's finding in Insight that it is notice to a person which must be effected within 12 months. The Appellant also notes that the Tribunal is not bound by Edgcumbe and Thow even if they were considered relevant to the case at hand.

[98] The Appellant also makes reference to the case of Canada (Minister of Transport) v. Canadian Aero Accessories Ltd.,1996 and 1997 CAT file no.: W‑1218‑41 (Review and Appeal) (Canadian Aero), in regards to the limitation period but cautions that a capitalization error in Canadian Aero could lead to a misleading finding. Indeed, the Appellant argues that subsection 7.7(1) of the Act refers to notifying a person of the Minister's decision, as opposed to a specific document called a notice. According to the Appellant, “‘Notice' can be a reference to a document, but in such a case, it is a proper name and is properly capitalized. The Act does not use the word in this way and does not refer to a document when speaking of ‘notice'”. The Appellant argues that a notice of assessment of a monetary penalty is a document by which the Minister has chosen to meet his subsection 7.7(1) obligation to notify the alleged offender.

[99] Indeed, the Appellant argues that subsection 7.7(1) of the Act is properly understood to mean that notifying a person by traceable mail sent to his latest known address requires that the person actually receive the mailed item. The Minister does not need to prove that the mail item left his office. Rather, it must be shown that the mail reached the Appellant.

(4) Pre-hearing Delay: the Review Member's finding with regard to the pre-hearing delay was unreasonable

[100] In his motion dated May 14, 2010, the Appellant asked that the proceedings be dismissed for an inordinate delay in bringing the matter to a hearing after its detection in April 2007. The Appellant submits that this ground was separate from, and in addition to, his request for relief on the basis of a breach of the limitation period, as well as from his request for relief for an abuse of process.

[101] The Appellant submits that the Review Member misunderstood his request as concerning the delay between the time the Minister first became aware of the alleged contravention and the time the Notice was issued, and disposed of his application on that basis.

[102] Furthermore, the Appellant notes that pre-trial delay is grounds for dismissal in its own right, and not just as a sub-category of abuse of process. However, the Review Member simply considered the Appellant's argument in respect of abuse of process and the corresponding test from Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (Blencoe).

[103] With regard to delay, the Appellant submits that there was no reason for the Minister to have failed to initiate the proceeding until over a year after the initial offence. Furthermore, the Minister's investigation effectively concluded on July 23, 2007, and formally on September 6, 2007. However, the Minister then waited five months to deliver an inadequate disclosure package to the Appellant in February 2008.

[104] The Appellant argues in his Appeal Submissions that an “inordinate and unacceptable delay”followed, which was “caused entirely by the Minister's failure and refusal to make proper disclosure and to otherwise conduct the proceeding in an efficient and diligent manner”. The Appellant submits that he holds no responsibility for the delay, and that the Review Member erred in attributing responsibility to the Appellant for the delay caused by the Minister's refusal to comply with disclosure obligations.

[105] The Appellant raises the case of Grover v. Canada (Attorney General), 2010 FC 320 (Grover), and argues that the four‑year delay in the case at hand is comparable to the ten‑year delay at the Canadian Human Rights Tribunal in Grover,which the Federal Court found resulted in a prejudice to the alleged offender's ability to answer the allegations against him.

[106] The Appellant contends that the Minister's witnesses, Mr. Kondrosky and Shawn Braiden suffered from an inability to properly recall events. According to the Appellant, “but for the delay created by the Minister, his witnesses would have had, at the Hearing, a better recollection of events”. The Appellant suggests that his case suffered significant prejudice as a result of this delay. Indeed, the Appellant's own witness, Antonio Sarra, admitted several times that he no longer clearly remembered important aspects of matters relevant to the case.

(5) Defence of Due Diligence (Count 1)

[107] The Appellant submits that the Review Member erred in finding that he had not proven a defence of due diligence in relation to the first charge. He alleges that this error included an inadequate provision of reasons, a misapprehension of material parts of the evidence, as well as an arrival at an unreasonable conclusion.

[108] The Appellant submits that the reasons are insufficient in this instance and fail to show why the Review Member decided as she did. The Appellant alleges that Mr. Kondrosky's recollection was unreliable, and that he gave vague and inconsistent evidence. He submits that in the light of the deficiencies in Mr. Kondrosky's evidence, it was crucial for the Review Member to make a finding as to the relative credibility of this witness.

[109] The Appellant notes that the Review Member seems to have come to her conclusion as to the lack of due diligence on the basis of Mr. Kondrosky's evidence, but does not provide any explanation as to how she came to prefer his evidence over that of other witnesses, which the Appellant alleges was “so often in conflict”. The Appellant alleges that because of this conflict, sufficient reasons should have been given for preferring Mr. Kondrosky's evidence over that of other witnesses.

[110] The Appellant submits that Mr. Kondrosky's report that Mr. Bradshaw had confirmed to him that “everything was signed off” was a statement that the Appellant reasonably took as an assurance as to the state of the paperwork. The Appellant contends that this belief is reasonable on an objective standard, which is supported by its acceptance by Mr. Wenger. Moreover, the Appellant submits that Long v. Canada (Minister of Transport), 2003 TATC file no.: O‑2824‑02 (Appeal),held that the actions of pilots speak louder than words, implying that the pilot did not consider the aircraft unairworthy as he continued to fly the aircraft.

[111] Furthermore, the Appellant contends that even in situations where there may have been conflict over the activities regarding the aircraft and delays, there is a reasonable expectation that information as to airworthiness will be honestly and reliably provided by an aircraft maintenance engineer. Indeed, both the Appellant and Mr. Wenger found it reasonable to accept Mr. Kondrosky's assurance and fly the aircraft.

[112] The Appellant argues that while the Review Member acknowledges that Mr. Kondrosky provided Mr. Wenger with a reasonable assurance that everything was signed off, the Review Member fails to explain how that same assurance could give “no basis on which the Applicant could assume that Mr. Kondrosky was told that the maintenance release had been completed”, as noted in the Determination.

[113] The Appellant also contends that the Review Member misapprehended the evidence before her on substantial facts which played an important part in her reasoning process. For instance, the Appellant contends that the Review Member misapprehended Mr. Kondrosky's evidence that the log book was not complete when the Appellant flew the aircraft as direct evidence, whereas he merely gave hearsay evidence as to the condition of the log book.

[114] The Appellant submits that the Review Member also misapprehended Mr. Kondrosky's evidence as to what Mr. Bradshaw had said about the maintenance paperwork. Indeed, the Appellant contends that the Review Member seems to have rejected Mr. Kondrosky's evidence that he told the others that Mr. Bradshaw had said the log book entries were done, as well as the evidence of Mr. Wenger and the Appellant that Mr. Kondrosky reported that Mr. Bradshaw had said that the log book entries were done; at the same time, however, the Review Member accepted that Mr. Kondrosky led Mr. Wenger to believe that the necessary release had been given.

[115] Similarly, the Appellant submits that the Review Member also misapprehended the Appellant's evidence as to what occurred during the September 1, 2006 telephone conversation between the Appellant and Mr. Bradshaw. The Appellant's evidence was that during this conversation, Mr. Bradshaw confirmed that “what he was doing as we spoke was making, in the log book, the entries that were required in order to bring the aircraft into a state of airworthiness”. The Appellant notes that Mr. Bradshaw also said later that the aircraft was legal to fly.

[116] The Appellant also submits that the Review Member erred in finding that the Appellant “could not rely on ‘expert' advice that the aircraft was ‘legal to fly' when he was told in the same conversation that the paperwork was in the course of preparation”. Furthermore, the Appellant submits that the Review Member's finding that there were “no reasonable grounds” to believe that the maintenance release had been signed was unreasonable and unsupported by the evidence.

[117] Indeed, the Appellant further submits that the Review Member's finding that the Appellant had no reasonable grounds to believe that the maintenance release was signed is based on two misconceptions. The Appellant submits that the Review Member erred in finding that there was a “necessary implication” that: a) if Mr. Bradshaw was doing the paperwork at the time he was talking to the Appellant on the telephone, then the paperwork was not complete; and that b) if the paperwork was not complete, there was not yet a maintenance release.

[118] The Appellant contends that this “necessary implication” fails at both steps. First, the fact that Mr. Bradshaw was doing paperwork early in the conversation does not mean that this paperwork was not completed by the end of the conversation. Indeed, the fact that Mr. Bradshaw said that the aircraft was “legal to fly” implies that the maintenance release had been signed. Moreover, the Appellant submits that even if the paperwork was not yet complete or was still in the course of preparation, it does not give rise to a “necessary implication” that there was “not yet a maintenance release”, since Mr. Bradshaw had a great deal of paperwork to prepare in addition to the maintenance release. The Appellant also notes that Mr. Kondrosky gave evidence that it was the entries into the technical logs that Mr. Bradshaw had told him were not yet complete.

[119] Furthermore, the Appellant notes that the Review Member failed to consider the Appellant's primary argument that his belief that the aircraft was ready to fly was objectively reasonable. This argument was supported by Mr. Wenger's evidence on this point, which stated that Mr. Kondrosky “told [Mr. Braiden] that….everything had been completed, everything was signed off. And I certainly would not have stepped in that airplane if it had not been signed off”. Not only does Mr. Wenger's evidence meet the standard of a reasonable person, but even that of a highly trained, experienced professional pilot who found it reasonable in the circumstances to believe that the maintenance release was signed off and that the aircraft was ready to fly. The Minister failed to adduce any evidence that an honest belief that the maintenance release had been signed off was unreasonable in the circumstances.

(6) Defence of Due Diligence (Count 2)

[120] The Appellant further submits that the Review Member erred in finding that no defence of due diligence applies to Count 2. This error includes a misapprehension of the evidence before the Review Member, as well as reaching a conclusion that is not supported by the evidence.

[121] Indeed, the Appellant testified that on berthing the aircraft at Boundary Bay, British Columbia (B.C.), he spent the remainder of the day attempting to recover the log book from Mr. Bradshaw. Moreover, Alex Sage testified that, a month later, the Appellant still had not recovered or replaced the log book. The Appellant notes that the reconstructed log book came into being on October 10, 2006, when Mr. Sage noted in the log book that the aircraft was fit for a ferry flight. The Appellant submits that the Review Member misapprehended this point of evidence, finding that it was the Appellant who noted in the log book that the aircraft was fit for a ferry flight.

[122] While the alleged contravention in this instance is the Appellant's failure to enter the flight into the aircraft log book, the Review Member found that there was a lack of due diligence because he did not enter the flight into the replacement log book. The Appellant notes, however, that this is akin to faulting the Appellant with a lack of due diligence relative to a hypothetical breach of a different section of the CARs, rather than the alleged contravention at issue.

[123] Furthermore, the Appellant contends that Mr. Rosa testified that there was a specific provision of the CARs for the transcription into the log book of a flight made on an earlier date when the log book was not available. However, Mr. Rosa did not provide the Appellant this information upon request, and failed to research the issue and contact the Appellant with the information as promised.

(7) Abuse of Process

[124] The Appellant contends that the Review Member erred in finding that the Minister acted reasonably on the basis of the information before him and that no abuse of process occurred in this case. The Appellant submits that the errors in this instance include a misapprehension of the evidence and an arrival at an unreasonable conclusion.

[125] The Appellant states that the Review Member described the Appellant's position on this issue such that the Minister's pursuit of the investigation was an abuse of process on the basis of wrongful behaviour. The Appellant submits that this is a misunderstanding of his position, which was the basis for the Review Member's finding in her Reasons of Interlocutory Ruling rendered on September 21, 2010, that the Minister acted reasonably, since “the fact that there is a dispute between the Applicant and the complainant is not a factor that should limit the Minister's ability to decide to investigate the matter”. However, the Appellant states that he never argued that Mr. Bradshaw's wrongful behaviour or the dispute between the Appellant and Mr. Bradshaw gave rise to an abuse of process. Rather, the Appellant submits that it is an abuse of process for “the Minister to allow his enforcement machinery to be engaged for the purpose of enabling Mr. Bradshaw's extortion scheme…”

[126] Furthermore, the Appellant argues that the Review Member erred in accepting the Minister's erroneous representation that the Minister must and does investigate all complaints received. The Appellant submits that the Review Member erred in not finding that the Minister wrongly exercised his ability to decide to investigate, thereby giving rise to an abuse of process.

[127] The Appellant alleges that the Review Member also erred in addressing only one aspect of his argument relating to an abuse of process and failing to rule on the Appellant's arguments in regard to prosecutorial excess.

[128] Furthermore, according to the Appellant, as the Minister's case is based on the log book entries created by Mr. Bradshaw, the Minister's continuation of the case against the Appellant is frivolous and vexatious when considering the overwhelming evidence countering Mr. Bradshaw's evidence.

[129] The Appellant suggests that Mr. Bradshaw's complaint should have been rejected by the Minister “on its internal frailties alone”. According to the Appellant, both the decision to prosecute, as well as the conduct of the prosecution in this case, constitute an abuse of process. He states that “the Minister took up Mr. Bradshaw's complaint…with such an obvious and distasteful excess of prosecutorial enthusiasm as to bring the administration of justice into disrepute”.

(8) Penalty

[130] The Appellant objects to the Review Member's finding that the penalties levied against him were reasonable, and submits that the Review Member erred in upholding these penalties.

[131] The Appellant submits that Mr. Rosa failed to consider the appropriate mitigating factors in determining the sanction in this case, and erred in applying the highest sanction possible for both counts. Moreover, he submits that the Review Member erred in misapprehending Mr. Rosa's evidence as an accurate reflection of the guidelines in the Manual, and further erred in failing to consider or apply the relevant factors.

[132] The Appellant contends that a penalty must be fit and proper according to the circumstances at hand, and that the appropriate sanction can be determined according to an examination of other penalties charged for the same offence. On the basis of Tribunal decisions considering similar offences, the Appellant submits that the penalty of $1 000 for a breach of subsection 605.03(1) of the CARs is high, and he notes that even in cases where there are findings of recklessness or negligence and/or aggravating factors, and the maximum penalty is $500 (see, for example, Canada (Minister of Transport) v. Desrochers, 2011 TATC file no.: Q‑2151‑33 (Review)). Absent a finding of recklessness or endangerment, the Appellant submits that a penalty stemming from a breach of subsection 605.03(1) of the CARs has never been over $250.

[133] The Appellant suggests that the Review Member misinterpreted the evidence in finding that he expressed determination to move his aircraft by flying rather than considering the other options available to him. Rather, the evidence demonstrates that the Appellant had come equipped with a truck and trailer to move the aircraft if it was not airworthy or legal to fly. According to the Appellant, “it was only on having had credible assurance that it was airworthy, in both the ‘physical' and the ‘documentary' senses that the decision was made to fly the aircraft”.

[134] The Appellant submits that similar mitigating circumstances should be considered with regard to Count 2. In considering the normal penalty for a breach of subsection 605.94(1) of the CARs, the Appellant notes that an average fine for this breach is $100 (See, for example, Canada (Minister of Transport) v. Sandhu, 2004 TATC file no.: P‑2844‑33 (Review), and Canada (Minister of Transport) v. Albert, 2000 TATC file no.: Q‑1878‑33 (Review and Appeal)). However, in the case at hand, the charge of $750 was upheld when there were no aggravating factors or unusual circumstances. The Appellant submits that a proper application and consideration of mitigating factors would have led to a charge of no more than $100.

[135] The Appellant notes that the Review Member found that “there was no reasonable explanation given for the failure to make the entry of the September 1, 2006 flight in the replacement log book that would serve to mitigate the penalty…” The Appellant submits that such a finding ignores the reasonable explanation given by the Appellant that Mr. Rosa did not keep his promise to provide the Appellant with the information he had requested. Indeed, Mr. Rosa still did not have this information at the time of the Review Hearing. According to the Appellant, “Mr. Rosa's promise to provide the necessary information and subsequent and continuing failure to provide that information is a reasonable explanation, negating the [Review Member's] finding with respect to the Count 2 penalty”.

B. Minister

(1) Standard of Review

[136] The Minister submits that the Review Member's Determination should not be overturned by the Appeal Panel because the Review Member made no errors of law and her findings of fact were reasonable. While the Minister acknowledges that an appeal panel may dismiss the appeal or allow it and substitute its own decision, the Minister submits that there are no grounds in this instance to justify granting the appeal.

[137] With regard to the appropriate standard of review, the Minister submits that the Review Member's findings of fact deserve deference, which can be defined as “a respectful attention to the reasons offered or which could be offered in support of a decision” (for example, see Newfoundland Nurses above). Furthermore, when considering what is “reasonable,” Newfoundland Nurses suggests that reasonable means that the “reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them”.

[138] Newfoundland Nurses also speaks to an adequacy of reasons, stating that even if a set of reasons does not include all of the arguments, statutory provisions, jurisprudence and other details that a reviewing body would prefer, it does not impugn the validity of the reasons or the result. Indeed, according to the Supreme Court in Newfoundland Nurses, “if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met”. The question to be asked in such an instance is whether “when read in light of the evidence before it and the nature of its statutory task, the Tribunal's reasons adequately explain the bases of its decision”.

[139] The Minister contends that the Review Member made reasonable findings of fact in this instance that should not be overturned on appeal; and similarly, that the Review Member's decision was correct in regard to all questions of law.

(2) Evidentiary Issues

[140] The Minister submits that the Review Member's ruling on the issue of whether or not the last two pages of the log book should be entered reflects the correct and proper interpretation of section 28 of the Act. Moreover, the Minister contends that this point is moot, since Mr. Rosa said in his testimony that whether or not the inscription was present in the log book, his decision to lay the charge for Count 1 would stay the same.

[141] Indeed, the evidence shows that there was a 17‑month delay between annual inspections. As the timeframe between inspections was more than 12 months, subsection 605.03(1) of the CARs was contravened. The Minister submits that this is proven based on all the evidence in the file, and that even without considering Mr. Bradshaw's entry into the log book at Exhibit M‑5, the contravention in Count 1 was proven on the balance of probabilities.

[142] The Minister argues that if the Appeal Panel finds that the Appellant's arguments regarding section 28 of the CARs are correct, the Minister submits that section 28 would be rendered essentially ineffective, since every time a party wishes to prove an inscription in a log book without having the author as a witness, the party would be required to prove the reliability and the necessity of the inscription in a voir dire. The Minister alleges that this would be contradictory to section 28 of the Act.

[143] Furthermore, the Minister submits that if the Appellant is correct and Mr. Bradshaw's evidence is not considered reliable, then consequently neither can his past log book entries be considered reliable. The Minister suggests that the result of this would be that the Appellant has not had a valid annual inspection since June 5, 2002, when an annual inspection was performed by Mr. Sage.

[144] With regard to the information that the Appellant was prohibited from entering into evidence to attempt to diminish the credibility of the alleged “Bradshaw hearsay”, the Minister submits that all of this information concerns a civil litigation matter between the Appellant and Mr. Bradshaw. Moreover, the Minister notes that the Appellant has failed to refer to the portions of these documents that are not in his favour, and that some of the quotations used by the Appellant were taken out of context and misinterpreted. The Minister also notes that the Appellant has failed to provide information as to the outcome of this civil litigation, or any of the other civil actions involving Mr. Bradshaw. The Minister argues that if the Appellant had wanted to produce this information into evidence, he should have called Mr. Bradshaw as a witness, since the “documents cannot by themselves attack the credibility of the person who is involved in the creation of said documents”.

(3) Limitation Period

[145] The Minister argues that the Review Member considered the parties' arguments and relevant jurisprudence, then ruled on this issue, deciding that the Notice had been delivered within the prescribed timeframe, and that the prescribed timeframe excluded the time taken for delivery. Indeed, according to Edgcumbe:

The assessment of monetary penalty was issued within the prescribed time frame, that is, the 12‑month period prescribed within section 26 of the Act commencing with the date of the alleged infraction and concluding 12 months afterwards. It does not include time taken for delivery.

[146] Similarly, in Thow, the Tribunal decided that “I am satisfied that the word ‘sent' contemplates sending the document in the circumstances of the matter before us and does not require proof of the reception of the document”. Moreover, Canadian Aero considered the date of the notice of assessment of monetary penalty in determining the 12‑month limitation period pursuant to section 26 of the Act. A similar approach was taken by the Tribunal in Royds v. Canada (Minister of Transport), 2004 TATC file no.: O‑2875‑39 (Review and Appeal).

[147] The Minister submits that the jurisprudence states that the starting date for calculating the limitation period is the date the notice is issued, and not the date the alleged contravener receives that notice, as alleged by the Appellant.

[148] Accordingly, the Minister submits that the Review Member was correct in concluding in her September 21, 2010 Ruling that “the proceeding was commenced when the Notice was delivered to the postal service on August 10, 2007, and thus was within the limitation period established by section 26 of the Aeronautics Act”.

[149] Moreover, the Minister submits that the Appeal Panel must give deference to the Review Member's findings of fact and credibility, including her decision to give weight to the Minister's evidence that the Notice was sent to the postal service on August 10, 2007. The Minister submits that this is a reasonable finding which has led to a reasonable outcome.

[150] While the Appellant has suggested that the Notice was sent to the wrong address, the Minister submits that this is a hypothetical argument which is not supported by any evidence. No envelope was produced to demonstrate that this error occurred. The Minister contends that it is reasonable to presume that the address on the letter would be the same as the address on the envelope, and that the Review Member reasonably decided that the Notice had been correctly addressed.

(4) Pre-hearing Delay

[151] The Minister submits that it is his responsibility to enquire into any complaint received with regard to an alleged infraction. He also argues that the delay between an alleged infraction and an official complaint is not relevant in determining if the Minister proceeds with the complaint or not, as the Minister has to start an investigation if there is a complaint. Furthermore, the four‑month interval between the time Transport Canada became aware of the alleged infractions and the time the Notice was issued was reasonable.

[152] Similarly, the Minister contends that the delay between the issuance of the Notice and the Review Hearing was also reasonable, and that if any delays were caused in the present matter, the Appellant is responsible for the majority of them. As the Tribunal determined that the Appellant's Motions were not relevant on many issues, it is therefore unreasonable for the Appellant to argue that the delay is the responsibility of the Minister.

(5) Defence of Due Diligence – Count 1

[153] The Minister argues that the Review Member made many reasonable findings of fact with regard to the unavailability of a defence of due diligence, and these findings of fact should not be overturned. For instance, the Review Member determined that there were several options available to the Appellant at the time of the flight that would have met the regulatory requirements.

[154] The Minister contends that the Review Member's decision on this point is “straightforward, understandable and clear”, and that she reached a conclusion that was based on the evidence before her. Upholding the Review Member's decision on this point would be consistent with the principles laid out in Newfoundland Nurses that the decision should be presumed to be correct even if the reasons are deficient in some respect, and that the Appeal Panel should consider the reasons that were offered––or could be offered––in support of the decision. Indeed, Newfoundland Nurses states that “when read in light of the evidence before it and the nature of its statutory task, the Tribunal's reasons adequately explain the bases of its decision”.

[155] Moreover, in terms of the credibility of Mr. Bradshaw, the Minister submits that the Appellant cannot argue that Mr. Bradshaw was not credible prior to and after September 1, 2006, but that he was credible at the moment the Appellant spoke to him over the telephone.

(6) Defence of Due Diligence – Count 2

[156] In terms of Count 2, the Minister submits that the Review Member made reasonable findings of facts in determining that there was no reasonable explanation as to why the entry was not made in the replacement log book, and that the Appeal Panel should not overturn these findings.

[157] Furthermore, subsection 605.94(1) of the CARs is clear about where and when a flight should be recorded, and by whom. A failure to make the necessary entry is a breach of the CARs. Moreover, there is the possibility of recording a flight in another log book if the original log book is not available. Even if the Appellant has a valid reason as to why the flight was not recorded in the original log book, the Review Member was reasonable in determining that recording the flight in the new log book would have constituted a good exercise of due diligence.

(7) Abuse of Process

[158] As it is the Minister's responsibility to enquire into any complaint received with regard to an alleged infraction of the Act or the CARs, the Minister submits that the proceedings in this case do not constitute an abuse of process. Indeed, if there is a complaint, the Minister starts an investigation related to the alleged infraction, and decides whether or not to lay charges on the basis of the evidence collected during the investigation. As the issue of Mr. Bradshaw's credibility was not established by the Review Member in the course of the Review Hearing, the Minister submits that it is not at issue.

[159] The Minister submits that the test for determining whether an abuse of process exists comes from Blencoe, which found that in order to find an abuse of process, a court must be satisfied that “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted”.

(8) Penalty

[160] In terms of penalty, the Minister submits that the Review Member's Determination was reasonable. Mr. Rosa provided evidence that the Minister could have charged the Appellant with many other breaches of the CARs, and was lenient in not doing so.

[161] The Minister submits that he took all mitigating and aggravating factors into consideration when evaluating the penalty in this case. Indeed, according to the Minister, “considering the fact that the Minister could have charged the Appellant with multiple charges, it is submitted that the Minister was extremely lenient in this case”.

[162] In summary, the Minister submits that when considering all of the facts and evidence of the file, the penalties imposed were reasonable and should not be interfered with.

VII. ANALYSIS

A. Issue #1 What is the appropriate Standard of Review?

[163] Before reviewing a determination of a Tribunal Member, an appeal panel must first determine the appropriate standard of review. The Supreme Court held in Dunsmuir that a standard of review analysis need not be repeated if the question has been previously determined.

[164] In Billings Family Enterprises Ltd. v. Canada (Minister of Transport), 2008 FC 17 (Billings), the Federal Court considered the appropriate standard of review for Tribunal decisions. The Federal Court determined that when reviewing questions of fact and credibility, an appeal panel owes considerable deference to a Tribunal Member.

[165] As such, when dealing with issues involving issues of fact and credibility, an appeal panel must consider if the 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 with that decision.

[166] However, where issues of law are concerned, the Federal Court found in Billings that no deference is due to a review member and an appeal panel may make its own findings.

B. Issue #2 - Was the Review Member's treatment of evidentiary issues reasonable?

[167] The Appellant objected to the Review Member's decision to allow into evidence what he termed the “Bradshaw hearsay” on the basis that there was “evidence to the contrary” pursuant to section 28 of the Act. The Appellant argues that this error was related to the Review Member's failure to allow into evidence what the Appellant considered to be evidence to the contrary. As such, the Appeal Panel believes that the examination of evidentiary issues must begin here.

[168] The Review Member's decision not to accept the Appellant's alleged “evidence to the contrary” pursuant to section 28 was made on the basis of this information being beyond the scope of the Appellant's personal knowledge, as well as being beyond the scope of relevance to the Hearing itself.

[169] While the Review Member stated that the information could be relevant to the issue of Mr. Bradshaw's credibility, she determined that she could not properly make any findings concerning Mr. Bradshaw's credibility. She further noted that she could not accept the email the Appellant attempted to enter into evidence without either the sender or the person to whom the email was addressed being present to testify.

[170] The Appeal Panel finds that the Review Member's approach to the Appellant's request to enter evidence in this case was reasonable. Indeed, the log book entry and related information the Appellant was seeking to enter was information that is well beyond the proper scope of this Hearing, considering that these documents relate to a different aircraft than the Appellant's. Moreover, the Review Member was reasonable in finding that she could not properly make a finding as to Mr. Bradshaw's credibility in this instance, as he was not before the Tribunal to provide evidence. As argued by the Minister, it would not be appropriate for the Review Member to impugn the credibility of an individual who did not appear before the Tribunal on the basis of documents alone, let alone documents from a matter unrelated to the one before the Tribunal. As such, we find that the Review Member's decision to deny entry of this information into evidence was reasonable.

[171] Having determined that the Review Member properly refused to enter these documents into evidence, the Appeal Panel must consider if the Review Member's decision to allow the “Bradshaw hearsay” to be entered into evidence was reasonable.

[172] The Appeal Panel finds that the Review Member's findings on this point were indeed reasonable. There was no evidence before the Review Member that would have required the Review Member to exclude this evidence. As such, her decision to accept this evidence was reasonable and must be upheld by the Appeal Panel.

[173] In summary, the Appeal Panel holds that the Review Member's evidentiary findings were reasonable, and that there is no reason to overturn these findings on appeal.

C. Issue #3 - Did the Review Member err in finding that the proceedings were instituted within the 12‑month limitation period provided for in the Act?

[174] The Appellant contends that the Review Member erred in determining that the proceedings were instituted within the 12‑month timeframe as required by section 26 of the Act. He suggests that the Review Member erred in finding that the Minister sent a notice by registered mail pursuant to the Act, and argues that there is no evidence on which to base this finding.

[175] The Appellant submits that notification is required to institute proceedings pursuant to the Act. He further argues that mail that is misdirected or lost does not satisfy the requirements of section 7.7 of the Act.

[176] The Minister submits that the Review Member considered all of the arguments and jurisprudence before her in reaching her decision on the limitation period issue. He submits that the Notice was issued on August 9, 2007, within the prescribed timeframe, and that the 12‑month deadline excludes time taken for delivery. Indeed, the Minister submits that the starting date to calculate the limitation period is the date of the issuance of a notice, and not the date it is received. As such, the Review Member was correct in determining in her September 21, 2010 Ruling that “the proceeding was commenced when the Notice was delivered to the postal service on August 10, 2007, and thus was within the limitation period established by section 26 of the Aeronautics Act”.

[177] The Minister argues that the Appeal Panel must defer to the Review Member regarding her findings of fact and credibility, which includes assigning weight to the Minister's evidence, and finding that the Notice was sent to the postal service on August 10, 2007. Furthermore, the Minister argues that there is no evidence to support the Appellant's allegation that the Notice was sent to the wrong address.

[178] The Appeal Panel notes that the first issue to be addressed in determining whether or not these proceedings were instituted within the appropriate 12‑month timeframe is establishing the steps required in order to institute proceedings before the Tribunal. The Appellant contends that an alleged contravener must be notified of the proceedings within the 12‑month period, while the Minister submits that sending notification is enough to institute proceedings.

[179] The Appeal Panel notes that Tribunal jurisprudence has addressed this point directly. Indeed, the Tribunal held under similar circumstances in Edgcumbe that “the assessment of monetary penalty was issued within the prescribed time frame, that is, the 12-month period prescribed within section 26 of the Act…” The Tribunal further noted that this 12‑month period “does not include time taken for delivery”.

[180] A similar approach was taken by the Tribunal in Royds, in which the Tribunal dismissed that applicant's complaint of delay in finding that “the time of this infraction was June 15, 2002 and [that] Transport Canada's subsequent Notice of Assessment of Monetary Penalty, dated June 6, 2003, was nine days less than the twelve-month limitation”.

[181] Canadian Aero is also clear on this point, finding that two offences at issue on appeal had been proscribed since “the second and third offences listed in the Notice occurred more than twelve months prior to the date of the Notice, thereby proscribing those two offences according to the provisions of section 26 of the Aeronautics Act”.

[182] The Appeal Panel notes that this approach finds support in Federal Court jurisprudence as well. Indeed, in Insight, the Federal Court upheld the findings of the Tribunal that proceedings were instituted on the date that the notice of assessment of monetary penalty was issued.

[183] The findings of the Tribunal Member in the case at hand are not dissimilar to the approach taken by the Tribunal in the past. While the Appeal Panel is not bound by past Tribunal decisions, we find that the approach taken in Tribunal jurisprudence was sound.

[184] In this vein, we find that the Review Member was correct in determining that the proceedings in this case were instituted within 12 months of when the subject matter of the proceedings arose. However, we do not agree that the proceedings were instituted when the Notice was sent in the mail. Rather, we believe that the proceedings were instituted on the date indicated on the Notice.

[185] In this case, the Notice was signed and dated within the 12-month period as required by the Act, thereby instituting the proceedings. Service of this document is not required in order for proceedings to be instituted. That is to say, the Appeal Panel finds that no service or notification with regard to an alleged contravention is required in order for proceedings to be instituted pursuant to section 26 of the Act. Consequently, the appeal on this point must fail.

D. Issue #4 - Was the Review Member's finding with regard to pre-hearing delay reasonable?

[186] The Appellant argues that there was an inordinate delay in bringing this matter to a hearing after it was detected in April 2007. He argues that the Review Member misapprehended his arguments as relating to the delay between the time the Minister first became aware of the alleged contravention and the time the Notice was issued.

[187] The Appellant submits that there was an inordinate and unacceptable delay in this case that was caused by the Minister's failure to make proper disclosure and to otherwise conduct the proceedings “in an efficient and diligent manner”. The Appellant likens the delay at hand to the case of Grover, and argues that “the 4 year‑effluxion of time in our case is analogous to the 10 years in Grover…” He further argues that the witnesses in the case at hand were unable to recall pertinent facts and that his case “suffered significant prejudice in result of the delay and failed memory of the witnesses”.

[188] The Minister argues that the delays in this instance are the responsibility of the Appellant, and that it is unreasonable for the Appellant to argue that it was the Minister who caused delays.

[189] The Review Member found that any delay in this instance was the responsibility of both parties, and that any delay was not so unreasonable as to justify dismissing the action.

[190] The Appeal Panel agrees with the Review Member's findings that the delay in this instance was not unreasonable, and also that this delay was attributable to both parties. Furthermore, the Appeal Panel notes that the Appellant has not demonstrated that he suffered any prejudice due to the delay. Indeed, any trouble the Minister's witnesses may have had testifying regarding the contravention that occurred four years earlier would likely have made it more difficult for the Minister to prove his case. Moreover, the Appeal Panel notes that it is difficult to accept an allegation of prejudice due to a delay in the context of a monetary penalty, since the delay has essentially resulted in a deferred payment of the penalty. Lastly, the Appeal Panel does not accept the Appellant's argument that the passage of time in the case at hand is analogous to the 10 years that passed in Grover. Indeed, the extent of the delay, the circumstances leading to the delay, as well as the consequences of the delay in Grover are clearly distinguishable from the case at hand.

E. Issue #5 - Was the Review Member reasonable in finding that no defence of due diligence existed for Count 1?

[191] The Appellant argues that the Review Member erred in finding that there was no due diligence in this case. He submits that the Review Member failed to explain why it preferred the evidence it did, and erred in relying on the evidence it did. He contends that the Review Member's reasons for her Determination were inadequate and inconsistent, and should be overturned.

[192] The Minister, however, argues that the Review Member made reasonable findings of fact, and that her conclusions were based on the evidence before her, and should not be overturned.

[193] In considering the Appellant's submissions regarding due diligence for Count 1, the Review Member found that there were several options available to the Appellant for moving the aircraft that would have met the regulatory requirements. As such, she found that it could not be said that he took all reasonable steps to avoid the offence.

[194] Moreover, the Review Member held that the Appellant had no reasonable grounds to believe that the maintenance release had been signed. She found that the Appellant had been told by Mr. Bradshaw that the aircraft was “legal to fly” and that he was doing the paperwork at that time. She then held that “the necessary implication from that statement was that the paperwork had not been completed so that there was not yet a maintenance release”. As such, she determined that “there is no basis on which the Applicant could assume that Mr. Kondrosky was told that the maintenance release had been completed. Mr. Kondrosky's evidence was that Mr. Bradshaw simply told him to release the aircraft to the Applicant”.

[195] The Review Member also noted that Mr. Kondrosky “probably used words that led Mr. Wenger to believe that the necessary release had been given. Since there had been no further communication between Messrs. Bradshaw and Kondrosky, the Applicant should have been aware that he could give no assurances on the state of the paperwork”.

[196] In summary, the Review Member noted at paragraph [117] that:

Based on the statement over the telephone by Mr. Bradshaw that he was doing the paperwork, there was a clear indication that the maintenance release had not been signed and given the long aviation experience of the Applicant, there is no reason to believe that he was not aware of the need for such a release. I find that a reasonable man in similar circumstances would not form a belief that the aircraft was “legal to fly” and so I find that on a balance of probabilities, the Applicant has not shown a defence of due diligence in relation to the first charge.

[197] While the Appellant has expressed his dissatisfaction with the Review Member's findings on this point, the Appeal Panel does not find that the Review Member's findings were unreasonable based on the evidence before her. Indeed, she considered that the Appellant had several options for removing the aircraft, and consequently she determined that the commission of the contravention was not necessary or inevitable.

[198] As noted above, the Review Member found that the Appellant “could not rely on ‘expert' advice that the aircraft was legal to fly when he was told in the same conversation that the paperwork was in the course of preparation”. The Appeal Panel finds this to be a reasonable statement based on the evidence before the Review Member. While the Appellant has provided an alternate explanation for the paperwork being incomplete—that the maintenance release had already been signed and that the other incomplete paperwork was not required prior to the flight—there is little evidence of this being the case. Indeed, it is not reasonable to overturn the factual findings of the Review Member based on an unsupported alternate account of what might have occurred.

[199] Moreover, it should be noted that the Review Member's findings were made in the context of her examination of the circumstances of the situation. The Review Member found that in the context of the dispute that existed, the alleged reassurances the Appellant received with regard to the status of the aircraft were not adequate to uphold a finding of due diligence. Indeed, the context of the dispute and the apparent animosity of the situation would have required a reasonably prudent person to have taken every step to ensure that the aircraft had been made ready to fly and that the proper documentation had been completed and signed.

[200] While there was some inconsistency with regard to the context of the situation, the Review Member made it clear that she preferred the evidence of Mr. Kondrosky as to the animosity that existed during this encounter over the evidence of Mr. Butterfield who claimed that it ended amicably.

[201] The Appellant has argued that the Review Member erred in focusing only on what a reasonable person would have done in the circumstances, and that she should have also considered whether the Appellant reasonably believed a mistaken set of facts which, if true, would render the act innocent. However, the Appeal Panel notes that the Review Member's analysis provides clear indication that given the acrimonious context of the situation, a reasonable person would have taken every step to ensure that the aircraft was ready to fly. Furthermore, the Review Member found that the Appellant was determined to leave with the aircraft. These findings of fact suggest that the Appellant's belief that the aircraft was ready to fly was likely not objectively reasonable under the circumstances, as would be required to prove a defence of due diligence. As such, the Appellant has failed to prove that he was duly diligent in this case.

[202] Ultimately, it is the Appellant's burden to prove a defence of due diligence. The Review Member was not satisfied that he had discharged this burden, and the Appeal Panel agrees that this was a reasonable finding on the basis of the evidence that was before her. While a different Review Member may have chosen to prefer other aspects of the evidence before them, it cannot be said that the Review Member's findings on the issue of due diligence were unreasonable. As such, the Appeal Panel upholds the findings of the Review Member as being within the reasonable range of outcomes, pursuant to Dunsmuir.

F. Issue #6 - Was the Review Member reasonable in finding that no defence of due diligence existed for Count 2?

[203] The Appellant submits that the Review Member erred in determining that no defence of due diligence applies to Count 2. He submits that he made every effort to attempt to recover the log book and was unable to do so. He argues that the Review Member erred in finding that no due diligence existed in this case due to his omission to enter the flight into the replacement log book. He further argues that Mr. Rosa agreed to research how he could go about entering the flight into the replacement log book, but did not provide him the information he had promised to enable the Appellant to make such an entry.

[204] The Minister agrees with the Review Member's finding that “there seems to be no reasonable explanation as to why the entry was not made in the replacement log book”. He submits that this finding was reasonable and should not be overturned. The Minister notes that the CARs contain a provision allowing for an entry to be recorded into another log book when the original log book is not available. While the Minister concedes that there is a reasonable explanation as to why the flight was not entered into the original log book, the Review Member was reasonable in finding that recording the flight in the new log book would have been an example of due diligence.

[205] The Appeal Panel notes that the failure to enter a flight into a log book is a strict liability offence, the commission of which was proven by the Minister in this case. From there, the burden shifts to the Appellant to demonstrate that he was duly diligent. In this case, the Review Member found that the Appellant was not duly diligent, and suggested that an example of due diligence would have been to enter the flight into the replacement log book.

[206] The Appeal Panel upholds this finding as reasonable. While the Appellant argued that the Review Member erred in faulting the Appellant with a lack of due diligence relative to some possible breach of another unidentified provision of the CARs, the Appeal Panel finds that this argument cannot stand. Indeed, the Review Member simply provided an example of what would constitute due diligence in these circumstances.

[207] The Appellant knew that a log book entry should have been made, and knew that a provision existed allowing him to make such an entry. However, rather than investigating this point further, he attempted to shift this responsibility to Mr. Rosa. However, the log book entry is the responsibility of the Appellant, and the onus is on the Appellant to ensure that all entries are made.

[208] The Review Member noted that the Appellant had a number of options under the CARs that would have prevented or at least mitigated the occurrence of the offence. The Appellant, however, did not take these additional steps. It is not this failure that resulted in the charges against the Appellant, as the contravention has already been demonstrated. Rather, failing to take these obvious steps demonstrates that the Appellant cannot reasonably prove that he took all reasonable steps to prevent the contravention. As such, he has not demonstrated a defence of due diligence.

[209] The Appeal Panel upholds the Review Member's findings on this point, and finds that she was reasonable in determining that the Appellant failed to demonstrate a defence of due diligence in this case.

G. Issue #7 - Did the Review Member reasonably determine that no abuse of process existed?

[210] The Appellant submits that the Review Member erred in her analysis on whether or not an abuse of process existed in this case. He alleges that the Review Member misunderstood his argument on this point and reached an unreasonable conclusion. He submits that it was an abuse of process for the Minister to “allow his enforcement machinery to be engaged for the purpose of enabling Mr. Bradshaw's extortion scheme …”. He also alleges that the Review Member erred in failing to consider whether there had been prosecutorial excess.

[211] The Minister contends that the Review Member's findings on this point were reasonable, and that an abuse of process was not established pursuant to the test in Blencoe, which requires that “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted”.

[212] Moreover, the Minister contends that the Appellant's argument of an abuse of process based on the Appellant's credibility concerns regarding Mr. Bradshaw cannot stand. The Minister submits that an issue of credibility must be established by a review Member at a hearing, which was not done in this instance, and furthermore that there was no evidence before the Review Member to support the Appellant's suggestion that Mr. Bradshaw was not credible. The Minister also notes that the Appellant has asked the Appeal Panel to find Mr. Bradshaw credible for the purposes of his defence of due diligence, but has then argued that Mr. Bradshaw's evidence has so little credibility that an investigation should not have occurred on the basis of his testimony.

[213] The Appeal Panel finds that the Review Member's findings on the issue of abuse of process were reasonable. Indeed, the Minister acted reasonably on the basis of the information before him, including the initial complaint by Mr. Bradshaw. While the Appellant has attempted to argue that it was unreasonable for the Minister to engage the investigation process “for the purpose of enabling Mr. Bradshaw's extortion scheme”, this allegation is both inflammatory and unfounded on the evidence that was before the Review Member and is now before the Appeal Panel.

[214] Insofar as the Appellant's allegation of prosecutorial excess is concerned, the Appeal Panel notes that this allegation is also unfounded on the evidence before the Tribunal. Furthermore, the Appeal Panel notes that the Appellant's complaint of prosecutorial excess could be considered inconsistent with his arguments in terms of delay, in which he alleged that the Minister failed to conduct the proceedings “in an efficient and diligent manner”, which led to an “inordinate and unacceptable delay”.

[215] For the above noted reasons, the Appeal Panel upholds the Review Member's finding that no abuse of process existed in this case.

H. Issue #8 - Were the penalties levied against the Appellant reasonable?

[216] The Appellant alleges that the Review Member erred in upholding the Minister's imposition of the maximum available penalty, and argues that the Minister failed to consider the factors listed in the Manual in terms of assessing the penalty. Moreover, the Appellant argues that the penalties imposed against him for both counts are out of line with Tribunal jurisprudence, in which penalties for similar infractions have been significantly lower.

[217] The Minister submits that the Review Member was reasonable in upholding the penalties imposed. Indeed, as stated by Mr. Rosa, the Minister could have charged the Appellant with many other violations of the CARs, but did not. According to the Minister, “considering the fact that the Minister could have charged the Appellant with multiple charges, it is submitted that the Minister was extremely lenient in this case”. He argues that Mr. Rosa took all mitigating and aggravating factors into consideration in determining the appropriate sanction, and that the sanctions imposed were extremely reasonable given the facts and the evidence of the case.

[218] The Appeal Panel is satisfied that the Review Member's decision to uphold the penalties assigned by the Minister was reasonable. While it is true that the sanctions are higher than those assigned in the Tribunal jurisprudence presented by the Appellant, they are nonetheless within the assigned penalty range for the contraventions. Furthermore, the decision to charge the Appellant with only two contraventions when other charges would have been appropriate serves as an aggravating factor in this case which points towards a penalty at the higher end of the penalty range.

[219] Based on the facts of the case and the evidence that was before the Review Member, the Appeal Panel holds that the Review Member's decision to uphold the sanctions imposed by the Minister was reasonable and should not be overturned.

VIII. DECISION

[220] The Appeal is dismissed as the Review Member's decision to uphold the penalties is reasonable and should not be overturned. The assessed penalties of $1 000 and $750 for Counts 1 and 2 are upheld, for a total penalty of $1 750.

August 14, 2013

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

Concurred by: Stephen Rogers, Member P. Terry Dowd, Member