Decisions

TATC File No. W-3606-33
MoT File No. SAP-5504-66112 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

William Paul Denomme, 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, s. 103.03 and para. 401.03(1)(a)


Review Determination
Elizabeth MacNab


Decision: October 20, 2011

Citation: Denomme v. Canada (Minister of Transport), 2011 TATCE 27 (Review)

Heard in Winnipeg, Manitoba, on January 20, 2011

Held:

Charges 1, 2, 3, 5 and 6 – The Minister has proven, on a balance of probabilities, that William Paul Denomme has contravened paragraph 401.03(1)(a) of the Canadian Aviation Regulations. The assessed penalty of $2 500 in respect of each charge is reduced to $250 per charge, for a total of $1 250.

Charge 4 – This charge was abandoned by the Minister.

Charge 7 ‑ The Minister has not proven, on a balance of probabilities, that William Paul Denomme contravened section 103.03 of the Canadian Aviation Regulations. Consequently, the monetary penalty of $2 500 is dismissed.

The total amount of $1 250 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] A Notice of Assessment of Monetary Penalty ("NAMP") was issued to William Paul Denomme on May 29, 2009, by the Minister of Transport ("Minister").

[2] Schedule A to the NAMP sets out seven charges as follows:

#1 – CARs 401.03(1)(a)

Between the 1st and 31st of May 2008, at or near Lac Du Bonnet, Manitoba, you, while acting as a flight crew member on at least one occasion, did fail to hold the appropriate licence namely, Commercial Pilot – Helicopter, while exercising said privileges, thereby contravening section 401.03(1)(a) of the Canadian Aviation Regulations.

MONETARY PENALTY - $2,500.00

#2 – CARs 401.03(1)(a)

Between the 1st and 31st of July 2008, at or near Lac Du Bonnet, Manitoba, you, while acting as a flight crew member on at least one occasion, did fail to hold the appropriate licence namely, Commercial Pilot – Helicopter, while exercising said privileges, thereby contravening section 401.03(1)(a) of the Canadian Aviation Regulations.

MONETARY PENALTY - $2,500.00

#3 – CARs 401.03(1)(a)

Between the 1st and 31st of August 2008, at or near Dewar Lake, Nunavut, you, while acting as a flight crew member on at least one occasion, did fail to hold the appropriate licence namely, Commercial Pilot – Helicopter, while exercising said privileges, thereby contravening section 401.03(1)(a) of the Canadian Aviation Regulations.

MONETARY PENALTY - $2,500.00

#4 – CARs 401.03(1)(a)

Between the 1st and 30th of September 2008, at or near Lac Du Bonnet, Manitoba, you, while acting as a flight crew member on at least one occasion, did fail to hold the appropriate licence namely, Commercial Pilot – Helicopter, while exercising said privileges, thereby contravening section 401.03(1)(a) of the Canadian Aviation Regulations.

MONETARY PENALTY - $2,500.00

#5 – CARs 401.03(1)(a)

Between the 1st and 30th of November 2008, at or near Lac Du Bonnet, Manitoba, you, while acting as a flight crew member on at least one occasion, did fail to hold the appropriate licence namely, Commercial Pilot – Helicopter, while exercising said privileges, thereby contravening section 401.03(1)(a) of the Canadian Aviation Regulations.

MONETARY PENALTY - $2,500.00

#6 – CARs 401.03(1)(a)

Between the 1st and 31st of December 2008, at or near Lac Du Bonnet, Manitoba, you, while acting as a flight crew member on at least one occasion, did fail to hold the appropriate licence namely, Commercial Pilot – Helicopter, while exercising said privileges, thereby contravening section 401.03(1)(a) of the Canadian Aviation Regulations.

MONETARY PENALTY - $2,500.00

#7 – CARs 103.03

On or about January 30, 2009, when a Canadian aviation document had been suspended, namely licence Commercial Pilot – Helicopter, you, to whom it was issued, did not return it to the Minister immediately after the effective date of the suspension, thereby contravening section 103.03 of the Canadian Aviation Regulations.

[3] A request for Review was filed with the Transportation Appeal Tribunal of Canada ("Tribunal") on July 20, 2009. A Review Hearing on the matter was held in Winnipeg, Manitoba on January 20, 2011.

II. STATUTES & REGULATIONS

[4] The basis for the suspension of the Applicant's pilot licence is set out in sections 68 and 69 of the Family Orders and Agreements Enforcement Assistance Act ("FOAEA Act"), R.S.C., 1985, c. 4 (2nd Supp.). The "Minister" referred to in section 68 is the Minister of Justice and the appropriate "Minister" in the case of Canadian aviation documents is the Minister of Transport.

68. Immediately on the receipt of a licence denial application and the affidavit referred to in subsection 67(3), the Minister shall inform each appropriate Minister of the receipt of the application, and shall provide the appropriate Minister with such information as may be necessary to help the appropriate Minister determine whether the debtor to whom the application relates is the holder of a schedule licence.

69. (1) On being informed of a licence denial application in respect of a debtor, an appropriate Minister shall immediately determine whether the debtor is the holder of a schedule licence issued by the appropriate Minister.

(2) If an appropriate Minister determines that a debtor is the holder of a schedule licence, the appropriate Minister shall suspend the schedule licence and, where applicable, refuse to renew the schedule licence.

(3) An appropriate Minister who takes any action under subsection (2) against a debtor shall send the debtor a notice in writing informing the debtor that the action has been taken.

[5] Paragraph 401.03(1)(a) of the Canadian Aviation Regulations (CARs) prohibits a person whose licence has been suspended from acting as a flight crew member. This paragraph was amended in 2011, but the previous version is the one relevant to this case and reads as follows:

401.03 (1) No person shall act as a flight crew member or exercise the privileges of a flight crew permit, licence or rating or a foreign licence validation certificate unless

(a) subject to subsection (2) and sections 401.19 to 401.27, the person is the holder of, and can produce while so acting and while exercising those privileges, the appropriate permit, licence or rating and a valid and appropriate medical certificate;

[6] Section 103.03 of the CARs requires a person whose document has been suspended to return that document to the Minister immediately:

103.03. Where a Canadian aviation document has been suspended or cancelled, the person to whom it was issued shall return it to the Minister immediately after the effective date of the suspension or cancellation.

III. EVIDENCE

A. Minister

(1) David Balfour

[7] David Balfour is a Civil Aviation Inspector at Transport Canada in Ottawa. For the past eight years he has been responsible for dealing with the Department of Justice on matters related to the FOAEA Act. These responsibilities include the suspension of Canadian aviation documents ("CADs"), pursuant to subsection 69(2) of the FOAEA Act. He explained that the Department of Justice prepares a computer list of persons whose documents may be affected under the FOAEA Act and forwards it to Transport Canada where it is automatically compared to Transport Canada's databases, and when there is a match of first and last names and date of birth, he prepares letters of suspension.

[8] A suspension comes into effect 30 days after a letter of suspension has been sent so that the holder has an opportunity to challenge its validity. These letters are sent to the person by Registered Mail, and where the address provided by the Department of Justice is different from that in the Transport Canada database, registered letters are sent to both addresses. The mailing is carried out by the mailroom and, unless Mr. Balfour is informed by those in the mailroom that the letter has not been received, he assumes it has been picked up by someone at that address.

[9] In the case of Mr. Denomme, the suspension letters, dated March 31, 2008, were slated to come into effect on April 16, 2008 (Exhibit M‑1); one was sent to the address shown in the Transport Canada database and the other to the one provided by the Department of Justice. Both were sent to the same municipality but one was sent to general delivery and the other to a P.O. Box. There was no indication given that the letters were not received and Mr. Balfour has now searched all possible records that could have indicated the letters had been returned.

[10] Mr. Balfour also stated that a letter of reactivation sent to the same address in 2010 was returned as undeliverable. A letter informing the recipient that his CAD has been reactivated is sent when Transport Canada is informed by the Department of Justice that the document holder has settled with the province. Although Mr. Balfour took no further steps towards informing Mr. Denomme of his licence's reactivation after a reactivation letter sent to him was returned, it is clear that Mr. Denomme was aware of the reactivation since he applied for an aviation document booklet, the new form of licence, shortly thereafter.

[11] Mr. Balfour introduced an affidavit by Ken Duford of the Department of Justice attached to an application by the Alberta Maintenance Enforcement Program ("Alberta MEP") for a licence denial to Mr. Denomme, together with an affidavit supporting this action from Dolores Pelayo, also from the Alberta MEP (Exhibit M‑2).

[12] Under cross-examination, Mr. Balfour confirmed that his first involvement in the matter was preparing the letters of suspension. He was not aware of the prior steps taken by the Province of Alberta or the Department of Justice. He was aware that Mr. Denomme held a commercial pilot licence and that the possession of such a licence is necessary for him to work as a pilot. Mr. Balfour agreed that "meaningful service" was important not only for Mr. Denomme, but also his employer since the status of his licence affects matters such as insurance. Mr. Balfour agreed that no attempt was made to serve Mr. Denomme personally or to contact him by telephone with the number in the database. When it was pointed out to him that the letters had been sent to ‘Armore' not ‘Ardmore', Alberta, he agreed that there had been a spelling error and that it was possible the letters had been sent to the wrong town. He pointed out, however, that the letters included the correct postal code.

[13] During re‑direct examination, Mr. Balfour confirmed that the FOAEA Act requires Transport Canada to give notice to the document holder in writing, but added that the FOAEA Act does not require that a notice actually be served. He also emphasized that serving a notice by Registered Mail goes beyond Transport Canada's requirements according to the FOAEA Act. He further stated that he has never heard of a town called ‘Armore' and repeated that the letters included the correct postal code.

(2) Kevin John Shott

[14] Kevin John Shott is a Civil Aviation Inspector at Aviation Enforcement in the Edmonton office of Transport Canada. In July 2008, he was assigned to investigate allegations that Mr. Denomme had been flying with a suspended licence. The information was provided by an aviation medical officer in Edmonton who had discovered that the licence had been suspended while he was reviewing a medical examination report for the renewal of Mr. Denomme's medical certificate. At that point, Mr. Shott reviewed the Transport Canada database and determined that Mr.  Denomme's licence had indeed been suspended under the FOAEA Act. He took no further action until January 2009, when he contacted the Royal Canadian Mounted Police ("RCMP") to ask them to locate Mr. Denomme and serve him with a letter of investigation. Coincidentally, Mr. Denomme telephoned him on January 30, 2009, so Mr. Shott decided to instruct the RCMP to take no further action on the matter.

[15] During the January 30, 2009 telephone call, Mr. Denomme confirmed that he had flown for a company called Provincial Helicopters Ltd. until December 2008. Mr. Shott informed Mr. Denomme that his licence had been suspended and that he must return his CADs to Transport Canada. Mr. Denomme was reluctant to return the documents since they were the source of his livelihood but agreed to meet Mr. Shott to discuss the matter. This meeting did not take place and the next contact he had with Mr. Denomme, besides a phone conversation in March 2009, was in June 2010, when Mr. Denomme called him seeking assistance reinstating his licence because Transport Canada was introducing a new booklet-style licence.

[16] After the January 30, 2009 telephone conversation, Mr. Shott contacted Provincial Helicopters Ltd. which confirmed that Mr. Denomme had flown for the company until December 2008, and provided copies of the relevant Aircraft Journey Logbooks for the flights, together with records of time flown (Exhibit M‑4). A review of these logs disclosed that no flights taking place in September accorded with the description in Charge 4 of the NAMP and it was conceded by the Minister that this charge must fail.

[17] During cross-examination, Mr. Shott agreed that after beginning his investigation he learned that Mr. Denomme held a commercial pilot licence, that he made his living by flying and that, consequently, it was very important that he be made aware of his suspension. After his initial review of the file, including obtaining a copy of the suspension letter from a Transport Canada database on August 12, 2008 (Exhibit A‑2), the pressures of other work prevented him from taking further steps until January 2009.

[18] Mr. Shott was concerned, at that time, that Mr. Denomme had not been made aware of his licence suspension. His investigation was initially for an offence under section 7.3 of the Aeronautics Act which requires that the offence, including the intention to offend, is proven beyond a reasonable doubt. He did not feel that this standard of proof could be met, but thought that there was a basis for a charge under the CARs, where there is a lesser standard of proof based on a balance of probabilities. His report recommended that the matter be referred to the Department of Justice and charges under the CARs were the result.

[19] Mr. Shott felt it was unreasonable that the Applicant would apply to renew his medical certificate if he was aware of the suspension. Mr. Denomme confirmed this suspicion during their telephone conversation on January 30, 2009. Mr. Shott also admitted to telling Mr. Denomme that the reason for his suspension was "confidential".

[20] Mr. Shott assumed that the information provided by the Department of Justice under the FOAEA Act was correct. He agreed that he made no attempt to contact Mr. Denomme at the telephone number available in the database and that he could have determined that Mr. Denomme was employed at Provincial Helicopters Ltd. at the start of his investigation. He could not recall when he first noticed the misspelling of ‘Ardmore' in the letters of suspension, but indicated that he was aware of it at the time of the letter of investigation dated January 28, 2008 (Exhibit A‑3), which, due to a typographical error, should have read January 28, 2009, as Mr. Shott testified.

[21] Under re‑direct examination, Mr. Shott said he was not aware of the Transport Canada databases available to Transport Canada medical personnel, but stated that designated medical examiners, private physicians given delegated authority to perform required aviation medical examinations, would not have access to these databases. During the time he was reviewing the information from the Transport Canada medical branch, the medical branch itself was in the process of suspending Mr. Denomme's medical certificate for other reasons. Mr. Shott confirmed that it was not his responsibility to inform Mr. Denomme that his licence had been suspended under the FOAEA Act.

B. Applicant's Evidence

(1) William Paul Denomme

[22] Mr. Denomme has held a fixed-wing pilot licence since the 1970s, a helicopter pilot licence since 1980, and has earned his living as a helicopter pilot ever since. He has worked for Provincial Helicopters Ltd. several times, in 1999, 2000 and then from 2007 until present. He agreed that he flew for that company between May 2008 and December 2008, and he further testified that he never received Mr. Balfour's letter of March 31, 2008 and had no knowledge of the suspension of his helicopter pilot licence.

[23] Mr. Denomme's mailing address is in Ardmore, Alberta where he stays with his son on acreage outside of town. While he is away, the practice is for his son's mother to pick up his mail and keep it for him until he returns, at which point he looks at it. Between January and June 2008, he was very busy flying for Provincial Helicopters Ltd., only occasionally staying in Ardmore, and then at most for a day or two. After referring to his Aircraft Journey Logbooks (Exhibit M‑4), he said they showed he was in Russell Lake, Saskatchewan from April 2 to May 29, 2009, and in Dewar Lake from August 2, 2009, to mid-September. While he was in Dewar Lake, he filed flight plans with Arctic Radio, located in North Bay, Ontario. At all times, whether he was working for Provincial Helicopters Ltd. or at Ardmore, he had his cellphone with him. The cellphone had an answering service and its number was in his Transport Canada file.

[24] Mr. Denomme first became aware of his suspension after the 2008 winter holiday break. He had gone to an aviation medical examiner to renew his medical certificate but the examiner deferred signing the medical examination report and referred it instead to Transport Canada, Civil Aviation Medicine because, since his last medical examination, Mr. Denomme had developed some medical issues. When Mr. Denomme called Dr. Jay Danforth of Transport Canada, Civil Aviation Medicine, to ensure that he had done everything necessary to keep his medical certificate, Dr. Danforth told Mr. Denomme that he had been told by Mr. Shott that his licence had been suspended.

[25] Mr. Denomme then called Mr. Shott who confirmed the suspension but said that the reason for the suspension was "confidential". He told Mr. Denomme that he was required to return his licence to Transport Canada. Mr. Denomme agreed to meet him to effect the return but then decided it would be in his best interest to keep his licence, so the meeting never took place. However, Mr. Denomme informed Provincial Helicopters Ltd. that his licence had been suspended and did not fly commercially after the conversation until he was informed by the Alberta MEP that his licence had been reinstated (Exhibit A‑4).

[26] Mr. Denomme could not recall if, during their telephone conversation, Mr. Shott asked him if he had received Mr. Balfour's Letter of Suspension (Exhibit M‑1), nor could he recall receiving the letter from the Alberta MEP, mentioned in Ms. Pelayo's affidavit (Exhibit M‑2).

[27] During cross-examination, Mr. Denomme stated that Ardmore, Alberta has been his mailing address since 1997. He collects his mail sporadically and is sometimes away for as long as two months. For a period (probably between 2004 and 2006), he was living in Cold Lake, Alberta, but maintained his Ardmore address, returning every two or three weeks to pick up his mail. He had previously received material from Transport Canada at that address, including medical renewals. During their telephone conversation, Mr. Shott did not tell him that there was a law requiring him to return his licence.

[28] Mr. Denomme admitted that he was aware he was in arrears of his support obligations to the Alberta MEP at the time of the suspension, but also stated that he did not make the connection between the two. At this point, the Minister's Representative suggested that Mr. Denomme should have been aware of this connection because he had received two previous suspensions in 1998 and 2003 on the same basis. Over the objection of the Applicant's Representative, I accepted the information as supporting the inference that Mr. Denomme should have known the reason for the present suspension, but that I would also determine its weight. The Applicant's Representative pointed out that one of the earlier suspensions was not upheld and should not be taken into account.

IV ARGUMENTS & SUBMISSIONS

A. Minister's Argument

[29] The Minister's Representative first addressed the question of the limitation period, which requires a charge to be laid within a year from the date of the offence, as applied to the first charge. He argued that the beginning of the period should be calculated from the date the charge was laid in the NAMP, May 29, 2009. Thus, as it was shown that a flight took place between May 29 and May 31, 2008, the first charge should not be rendered invalid due to the limitation period's expiration.

[30] In terms of showing that the licence was suspended, he referred to the Secretary's Certificate (Exhibit M‑3) which states that the licence was suspended between April 16, 2008 and June 16, 2010. There was no disagreement that he was flying between May and December, 2008.

[31] Section 103.03 of the CARs requires that a suspended licence be returned forthwith after the date of suspension (in the present case, April 16, 2008), and this was not completed. Consequently, the Minister's Representative argues that Charge 7 is proven.

[32] With regard to the Letter of Suspension (Exhibit M‑1), the Minister's Representative argued that all the FOAEA Act requires is that a letter notifying the individual of the suspension be sent to the recipient's last known address. Transport Canada exceeds this requirement by sending letters by Registered Mail; its practice is to deem that the letter has been received if it is not returned. Furthermore, the FOAEA Act expressly states that it takes precedence over other statutes and so, whether or not Transport Canada exceeds its requirements, a letter of suspension sent to the last known address satisfies the requirements of that Act.

[33] Although the Minister's Representative recognized that there was a typographical error in sending the letter to ‘Armore', Alberta rather than to ‘Ardmore', the postal code was correct and he suggested that I take official notice of the fact that it is the postal code that is determinative in deciding where mail should be delivered. He submitted on this basis that it was delivered to Ardmore and received by someone, probably the Applicant's ex‑wife who picks up and holds his mail. Additionally, he submitted that Canada Post is more careful with Registered Mail, and that if there had been a problem with the address it would have been returned to Transport Canada for correction.

[34] With regard to the Applicant's Representative's question as to why Mr. Shott did not simply telephone Mr. Denomme to inform him of the suspension, the Minister's Representative pointed out that it was not his responsibility to provide this information. Nevertheless, he did provide that information in the letter of investigation he gave to the RCMP, but that letter was never delivered in view of his telephone conversation with Mr. Denomme on January 30, 2009.

[35] With regard to Ms. Pelayo's unsigned affidavit, attached to the affidavit of Mr. Duford of the Department of Justice (Exhibit M‑2), he argued that the affidavit was unsigned because it had been taken from an electronic database and that, in any event, paragraph 4 of Mr. Duford's sworn affidavit states that Ms. Pelayo's affidavit was sworn in support of the application of the Alberta MEP, and that the application was validated.

[36] The Minister's Representative submitted that the level of the penalties was based on a schedule that sets out $2 500 as the minimum penalty per charge for a second offence. While Mr. Denomme flew many times during the period, it was decided to charge him with only one flight per month.

B. Applicant's Argument

[37] The Applicant's Representative argued that the suspension of a professional licence is a drastic step with grave consequences for its holder; as such it is imperative that the steps leading up to the suspension be carried out with no procedural errors. In support, he cited Jones's Principles of Administrative Law, which quotes statements by the Supreme Court of Canada to that effect. In the present matter, the Letter of Suspension (Exhibit M‑1) was sent by Registered Mail but nothing was received back from the post office concerning its delivery. The letter was not tracked and it was only assumed that it had been delivered. This is a jurisdictional error and all the charges should be dismissed.

[38] Mr. Denomme stated that he never received the Letter of Suspension (Exhibit M‑1) and even the Transport Canada Civil Aviation Safety Inspector, Mr. Shott, does not believe he received it. In addition, there was confusion over the validity of the medical certificate. More could have been done to inform Mr. Denomme of his suspension; his telephone number was on file but no attempt was made to telephone him.

[39] In response to the Minister's argument that Canada Post takes more care with Registered Mail, the Applicant's Representative replied that no evidence was given in support of this statement. Registered Mail is only effective if a receipt showing acceptance is obtained.

[40] The Applicant's Representative repeated that, although Mr. Duford's affidavit with respect to the FOAEA Act was sworn, Ms. Pelayo's affidavit was not and there was no evidence presented that it had ever been. In addition, the affidavit does not state where the notice was sent, only that it was sent to the last known address, a jurisdictional error since it does not indicate what this address is.

[41] The Applicant's Representative referred to International Express Aircharter Ltd. v. Canada (Minister of Transport), 2006 TATC file no. P-3247-10 (Review), which states that there is Tribunal precedent supporting the conclusion that failure to properly serve a notice of suspension invalidates the notice of suspension. The precedent referred to is in Aéro‑Club de Richelieu v. Canada (Minister of Transport), 1991 CAT file no. Q‑0243‑10 (Review), and the relevant statute is the Aeronautics Act. It is the Applicant's submission that the same stringency should apply to matters under the FOAEA Act. In the present matter, the Letter of Suspension (Exhibit M‑1) was sent to the wrong address and the affidavit evidence is insufficient.

[42] The Applicant's Representative further submitted that it is unfair to have a charge for each month since the problem could have been resolved in July 2008, when Mr. Shott began working on the file had only he made a simple telephone call. On this basis the equities favour Mr. Denomme. The Applicant's Representative referred to Rubbert v. Canada (Minister of Transport), 2009, TATCE 33 (Review), file no. C-3336-33, where multiple charges with multiple penalties were treated as only one occurrence. While the amount of the penalty may be justified if the offence is knowingly committed, where such is not the case, significantly lower penalties are warranted.

[43] He further submitted that the principles governing penalties are set out in Canada (Minister of Transport) v. Wyer, 1988 CAT file no. O‑0075‑33 (Review), including the mitigating factors that should be taken into account, such as whether there was a safety issue involved, and the degree of cooperation shown by the offender. In the present case, there has been no suggestion of any safety issue and Mr. Denomme cooperated by telephoning Mr. Shott as soon as he was informed of his suspension, as well as by telling his employer. Finally, he has already suffered a significant penalty in losing his ability to earn his living by flying. His refusal to return his licence was reasonable given the circumstances: Mr. Shott would not tell him the reason for his suspension and he had received nothing in writing concerning it.

[44] The Applicant's Representative argued that, in terms of the limitation period, no evidence was offered concerning the alleged flights between May 29 and 31, 2008. He further argued that the obligation to return the licence arose on April 16, 2008 (according to Mr. Balfour's letter [Exhibit M‑1]), when the suspension was slated to come into effect. Consequently, the charge laid on May 29, 2009, was well beyond the limitation period. He also noted that the NAMP itself was not entered into evidence.

[45] In terms of Mr. Denomme's earlier history, his Representative observed that in Canada (Minister of Transport) v. Denomme, 2003 CAT file no. W-2503-33 (Appeal), the Appeal Panel noted that there were a number of matters for Transport Canada to consider including whether Transport Canada should go beyond the FOAEA Act provision that service be by ordinary mail, and instead apply the service requirements of the Aeronautics Act. While Transport Canada did, in the present matter, serve the 2008 Letter of Suspension (Exhibit M‑1) by Registered Mail, it sent the letter to the wrong address and did not followup to see if it had been received; even the investigating officer does not believe it was received.

C. Minister's Reply

[46] The Minister's Representative pointed out that the NAMP is the charging document that brought the Applicant before the Tribunal, and therefore it is not necessary to enter it into evidence. He also pointed out that in Rubbert, the charge and the penalty assessed against Mr. Rubbert were upheld.

[47] He referred to paragraph 5 of the Duford affidavit (Exhibit M‑2) where Mr. Duford stated that he had validated the application sent by Ms. Pelayo, noting that this application included the Ardmore (with a ‘d') address of Mr. Denomme. In terms of the quotations from Principles of Administrative Law, he argues that the FOAEA Act is very stringent in taking the non-payment of support obligations very seriously. It makes no provision for appeal and specifically states that it takes precedence over other legislation. Consequently, service in accordance with the FOAEA Act's requirements, ordinary mail to the last known address, is sufficient to establish the suspension.

[48] In terms of the limitation period as it affects the charge of failing to return the licence, even if it is held that the mail service for the Letter of Suspension (Exhibit M‑1) was ineffective, service was clearly effected in the telephone call by Mr. Shott on January 30, 2009.

[49] The Minister's Representative noted that the reduction of the penalty in the 2003 Denomme Appeal Decision was based on the Tribunal's finding that it was not necessary for a deterrent effect. This has been shown not to have been the case and a penalty of $2 500 might deter Mr. Denomme from further failures to pay his maintenance.

V. ANALYSIS

A. The FOAEA Act Suspension

[50] The Applicant's Representative raised a number of points in relation to the suspension under the FOAEA Act set out in the letters from Mr. Balfour, dated March 31, 2008 (Exhibit M‑1). He argued that the letters were wrongly addressed; they were not received by the Applicant; no steps were taken by Transport Canada to determine if there had been a delivery; and the suspension was based on an unsworn affidavit by the Alberta MEP official, Ms. Pelayo.

[51] With regard to the last point, I do not believe the Tribunal has the jurisdiction to review whether the material supporting a suspension under the FOAEA Act is adequate. Section 69 of the FOAEA Act sets out the obligations of an appropriate Minister, in this case the Minister of Transport, and subsection 69(1) requires that, once the Minister has been informed of a licence denial application, he shall determine whether the debtor named in the application holds a licence. Mr. Balfour's evidence is that this task is performed automatically through a computer program that compares the list of those subject to a licence denial application with the Transport Canada database of licence holders. There is neither an obligation for nor the ability of Transport Canada to review the adequacy of the application once informed of its existence.

[52] Subsection 69(2) provides that, once the debtor has been identified as holding a licence, the Minister shall suspend that licence. The Minister is given no discretion with regard to this action. It is not clear how, specifically, a suspension is established, but each is noted in the relevant Transport Canada database. Subsection 69(3) requires the Minister to send information in writing to the debtor concerning the suspension. I note that it is Mr. Balfour's evidence that it is Transport Canada's practice to delay the date of suspension for a period, usually 30 days, so that the holder can make objections or arrangements concerning it.

[53] The precipitating factor for Transport Canada, therefore, is the information from the Department of Justice that there has been a licence denial application; as such the affidavits of Mr. Duford and Ms. Pelayo (Exhibit M‑2), which were provided to Transport Canada long after the event (on or after December 17, 2010), have had no influence on the suspension. I also note that section 71 of the FOAEA Act provides that there is no appeal from any action taken under ‘Part III: Licence Denial', which includes section 69.

[54] According to Mr. Balfour's evidence, identical letters informing Mr. Denomme of his suspension were sent to the "last known address" set out in the Transport Canada database and to the address provided by the Department of Justice. Both letters, however, contained the same spelling error, calling the municipality ‘Armore' rather than ‘Ardmore', yet the postal code on both letters was correct. The Applicant's Representative argues that, because of the gravity of the consequences, the FOAEA Act must be interpreted strictly and that failure to have a correct "last known address" must render the suspension invalid. The Minister's Representative suggests I take official notice that the postal code is the determinative factor when delivering mail, and that the postal code on the letters is correct.

[55] While I do not believe I can take official notice that the postal code is determinative without some precedent on the point, I find that the error in the spelling of ‘Ardmore' was minimal. In view of the facts that the Province was correctly named, the postal code was correct and that there is no other town in Alberta with a similar name, it is unlikely that the reason for non-delivery, if there was non-delivery, was that mistake.

[56] An argument was advanced by the Applicant's Representative that no steps were taken by Transport Canada to determine whether the letters had been received and that there was little point in sending letters by Registered Mail if there was no system for following up. It was noted that in the prior Denomme decision, the Tribunal Appeal Panel suggested that Transport Canada take steps to establish procedures for ease of proof in future cases. Transport Canada did, indeed, establish a policy of sending information regarding suspensions under the FOAEA Act by Registered Mail, but since, according to the testimony of Mr. Balfour, no further steps are taken to confirm delivery unless the letters are returned, there seems little point to this change in policy. As argued by the Applicant's Representative, there is little value to registering mail if no receipt of acceptance is sought.

[57] The Minister's Representative, however, pointed out that the FOAEA Act only requires that information be given in writing and, since there is no specific method of providing the written information mentioned, ordinary mail suffices to meet this requirement. Consequently, I find that Mr. Denomme's licence was suspended in accordance with the requirements of the FOAEA Act during the period from April 16, 2008 to June 16, 2010, as set out in the Secretary's Certificate (Exhibit M‑3).

[58] While I have found that the steps necessary to implement a suspension under the FOAEA Act were taken, I also find, on a balance of probabilities, that Mr. Denomme did not receive the letters informing him of that suspension. His evidence was that he did not receive them and his actions following March 31, 2008 (the date on Mr. Balfour's letters [Exhibit M‑1]) seem to support that statement. Principally, he continued to take the required examinations to support his licence until he was told by a Transport Canada Medical Examiner that his licence had been suspended. Even the Transport Canada Investigator, Mr. Shott, is concerned that the letters were not received. There is no evidence concerning the fate of the letters after they left Mr. Balfour's office other than his assumption that they had been delivered, although searches were made concerning them.

B. Charges under Paragraph 403.03(1)(a) of the CARs

[59] The first six charges against Mr. Denomme allege that, during each specified month, he acted as a flight crew member while failing to hold the appropriate licence, ‘Commercial Pilot – Helicopter'. Mr. Denomme acknowledged that he flew during those periods and his Aircraft Journey Logbooks were offered as evidence for the flights (Exhibit M‑4). On the basis of these records, Charge 4 was not further argued since the logs showed no flights that took place "at or near Lac DuBonnet" for the specified time period, the subject of the charge.

[60] There was also some discussion of whether the limitation period, established under section 26 of the Aeronautics Act, applied to the first charge in the NAMP. Since the NAMP was dated May 29, 2009, any flights that took place before May 29, 2008, cannot be considered, due to the one-year limitation period. The log showed, however, that a flight fitting the description in the first charge took place on May 29, 2008.

[61] It was also pointed out that the NAMP was not entered into evidence. I find that, while in some cases the Minister chooses to enter the NAMP as an exhibit, it is not necessary to do so since it is already subject to the Tribunal's consideration as part of the record before it.

[62] The Applicant's Representative raised some issues as to how the investigation was carried out. He suggested that more could have been done much earlier in the course of the investigation to notify Mr. Denomme of his suspension, the omission of which resulted in his flying in contravention of paragraph 403.03(1)(a) of the CARs, especially since it was likely that he had not received a letter from Mr. Balfour telling him that he had been suspended under the FOAEA Act. The Safety Inspector withdrew his request that the RCMP personally serve Mr. Denomme with the letter of investigation, which would have formally informed him of his status. The problem was exacerbated when Mr. Shott, after having verbally informed him that his licence was suspended, refused to tell him the reason on the grounds that it was confidential.

[63] Mr. Shott explained that he was very busy and, after his initial investigation in July and August 2008, he took no further steps until January 2009. He withdrew his request to the RCMP because Mr. Denomme had agreed to meet him. While it is understandable that this matter was not given priority in the summer of 2008, after Mr. Shott had obtained Mr. Balfour's letters on August 12, 2008, he should have at least suspected that Mr. Denomme was not aware of the suspension, especially since the information had come to him while Mr. Denomme was renewing his medical certificate.

[64] I regard Mr. Shott's failure to inform Mr. Denomme of the reason for his suspension during the telephone conversation as a very serious omission. While considerations of the privacy of personal information would quite properly prevent him from giving that information to others, as the individual concerned, Mr. Denomme was entitled to know the reason for the action taken against him. The fact that he had been suspended for a similar reason some years earlier does not mean that he would identify the reason for his past suspension as the reason for the present, nor does the fact that he could have done so make it confidential information in the hands of Transport Canada. I acknowledge, however, that at some point, Mr. Denomme did learn the reason for the suspension since he made arrangements to settle his arrears and the suspension was removed.

C. Sanction

[65] The Minister has assessed a monetary penalty of $2 500 for each of the first six charges (excluding Charge 4, which has been abandoned). This amount was based on guidelines that suggest that this amount should be the penalty for a second offence. These guidelines were not entered as evidence, however, and guidelines as such have no compulsory legal status.

[66] The Applicant's Representative suggested that there are mitigating factors that were not taken into account and that there should be a substantial reduction in the penalty amount. He referred to Wyer as defining the factors to be taken into consideration by the Tribunal when determining penalties. He also mentioned Rubbert as a case where multiple offences were condensed into one charge and argued that there should be a similar result here.

[67] I agree that the penalties should be reduced. There are a number of mitigating factors, including a lack of any safety concerns and Mr. Denomme's tacit admission of the offence by ceasing to fly as soon as he was aware of the suspension. While there was some cooperation with Transport Canada officials during the investigation, that must be balanced against the failure to meet with Mr. Shott after agreeing to do so. Most important, however, is Transport Canada's delay in taking enforcement action after it had become aware that Mr. Denomme was still flying after the suspension had come into effect. Charges 5 and 6 (related to flights in November and December, 2008) could have been avoided altogether had earlier action been taken by Transport Canada.

[68] The Minister's Representative argued that, when deciding on the amount of penalties, one should take into account the necessary deterrent effect, a factor set out in Wyer. He argued that, although the reduction of the penalty in the earlier case against Mr. Denomme was partly based on the finding that deterrence was not a factor, the need to deter Mr. Denomme has now been made clear since this is a second offence for him. This argument, however, ignores the fact that we are dealing with two separate penalties imposed under two different statutes, only one of which comes within the jurisdiction of the Tribunal. At this point, we are dealing with an offence of acting as a flight crew member without holding the appropriate licence. Since it is probable that Mr. Denomme did not know of his suspension while he was flying and since he immediately stopped as soon as he was made aware of the suspension, it cannot be said that he needs to be deterred from repeating this particular offence. Whether the deterrent effect of a suspension on his willingness to pay his support obligations needs to be emphasized is not a matter that the Tribunal can or should consider.

[69] The Applicant's Representative suggested that the example of Rubbert should be followed and Charges 1 to 6 should be reduced to only one offence. In Rubbert, however, the decision to treat all incidents as one offence was made by the Minister in establishing the charge and to some extent, that practice was followed in this case where several flights carried out by Mr. Denomme each month were condensed into one count of the charge.

[70] The penalties were assessed in respect of a second offence since the same charge was upheld by the Appeal Panel in the prior matter concerning Mr. Denomme. The Minister's Representative stated that there are guidelines which suggest a penalty for a second offence should be $2 500. I cannot take official notice of these guidelines since they possess no legislative force; they were not presented in evidence; and they are not a mandatory amount. In addition, I am free to consider changing them under paragraph 8(b) of the Aeronautics Act which provides for very broad discretion in that the Tribunal Member hearing the review may determine the amount of the penalty payable in respect of the contravention.

[71] It could be argued, however, that this discretion is limited by subsection 7.3(6) which provides that the minimum penalty for a second or subsequent offence under Part I of the Aeronautics Act, (which includes the provisions relating to designated provisions), shall not be less than $250. Subsection 7.6(2) specifically provides that a person who contravenes a designated provision is guilty of an offence. On the other hand, it also states that the procedures relating to designated provisions are set out in sections 7.6 to 8.2. I note that other provisions generally relating to offences, such as section 8.4, have been applied in respect of designated provisions. Taking all the factors and considerations mentioned above and without coming to any conclusion as to whether I am bound by subsection 7.3(6), I find that the amount set out in that section would be an appropriate penalty.

[72] Consequently, I assess a penalty of $250 for each of Charges 1, 2, 3, 5 and 6 for a total of $1 250.

D. Charge under Section 103.03 of the CARs

[73] The final charge, Charge 7, laid against Mr. Denomme was that on or about January 30, 2009, he failed to return his Commercial Pilot – Helicopter licence to the Minister immediately after the effective date of the suspension. It is interesting to note that the date given for the suspension is January 30, 2009, whereas the other charges all refer to activities that took place before that date. The Minister's Representative argued that the notice of the suspension was given during the telephone call of January 30, 2009, whereas the Applicant's Representative argues that the relevant date is April 16, 2008 (Exhibit M‑1), so that the charge in the NAMP (May 29, 2009) was laid well beyond the expiration of the limitation period.

[74] I find that there was only one suspension issued and it was done pursuant to the FOAEA Act to come into effect on April 16, 2008. The Minister cannot take the position that for some purposes, the suspension came into effect on April 16, 2008, and for others it came into effect on January 30, 2009. Even if there was a different suspension issued on January 30, 2009, it did not meet either the minimal requirement of a notice in writing under the FOAEA Act or the service requirements of the Aeronautics Act.

[75] While it might be argued that there was an intention to suspend pursuant to section 6.9 of that Act, subsection (1) provides that such a suspension shall not come into effect for at least 30 days after the notice is served or sent, and subsection (2) provides that the notice must indicate the provision alleged to have been contravened and how to seek a review of the suspension by the Tribunal. There is no evidence that any of these requirements were met. While Mr. Denomme was told to surrender his licence, he was not told that it was a regulatory requirement and was certainly not referred to a specific provision. Furthermore, while he was told that his licence had been suspended, he was not told the reason. Therefore, I find that Charge 7 has not been proven on a balance of probabilities.

[76] I would have reached the same conclusion even if the charge had been worded to incorporate the date of April 16, 2008. Section 103.03 of the CARs requires a document holder to surrender the document immediately after the effective date of its suspension. Since that date is April 16, 2008, the question is whether the period between that date and May 29, 2008, which begins the calculation of the limitation period, is short enough to meet the criterion of immediacy; common sense tells us that it is not. If the purpose of requiring the surrendering of a document is to prevent its usage during the suspension, six weeks is an unacceptable delay. On this basis, I find that the charge was laid after the expiration of the limitation period.

VI. DETERMINATION

[77] Charges 1, 2, 3, 5 and 6 – The Minister has proven, on a balance of probabilities, that William Paul Denomme has contravened paragraph 401.03(1)(a) of the Canadian Aviation Regulations. The assessed penalty of $2 500 in respect of each charge is reduced to $250 per charge, for a total of $1 250.

[78] Charge 4 – This charge was abandoned by the Minister.

[79] Charge 7 ‑ The Minister has not proven, on a balance of probabilities, that William Paul Denomme contravened section 103.03 of the Canadian Aviation Regulations. Consequently, the monetary penalty of $2 500 is dismissed.

October 20, 2011

Elizabeth A. MacNab

Member