Decisions

TATC File No. C-3449-33
MoT File No. RAP5504-63503 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

William Edward Kipke, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433; ss 602.13(1)


Review Determination
Elizabeth MacNab


Decision: June 28, 2012

Citation: Kipke v. Canada (Minister of Transport), 2012 TATCE 17 (Review)

Heard at Winnipeg, Manitoba, on: December 16 to 18, 20 and 21, 2010;

Held: The Minister of Transport has not proven, on a balance of probabilities, that the Applicant, William Edward Kipke, contravened subsection 602.13(1) of the Canadian Aviation Regulations. Therefore, the charge is dismissed.

I. BACKGROUND

[1] On November 27, 2007, the Minister of Transport ("Minister") issued a Notice of Assessment of Monetary Penalty ("NAMP") to the Applicant, William Edward Kipke, alleging that he had contravened subsection 602.13(1) of the Canadian Aviation Regulations, SOR/96-433, ("CARs") and assessing a monetary penalty in respect of that contravention for $750. The alleged contravention is described in "Schedule A" to the Notice as follows:

Schedule A – Annexe A

COUNT #1: $750.00

Canadian Aviation Regulation 602.13(1), in that, on or about July 25th, 2007, at or near Little Grand Rapids, Manitoba, you did conduct a take-off, approach or landing in an aircraft within a built-up area of a city or town, to wit: Little Grand Rapids, Manitoba, when you were not permitted under this section, section 603.66 or Part VII of the Canadian Aviation Regulations (CARs), and when that take-off approach or landing was not conducted at an airport or military aerodrome.

Monetary penalty applied:

Count #1 = $750.00

TOTAL $750.00

[2] On December 11, 2007, the Applicant requested a review of the Minister's decision by the Transportation Appeal Tribunal of Canada ("Tribunal"). After a number of preliminary matters had been disposed of, the Tribunal heard the matter over three separate sessions: from December 16 to 18, 20 and 21, 2010; March 28 to 31, 2011; and September 26 to 28, 2011.

II. REGULATION

[3] At the time of the alleged contravention, subsection 602.13(1) of the CARs read as follows:

602.13 (1) Except if otherwise permitted under this section, section 603.66 or Part VII, no person shall conduct a take-off, approach or landing in an aircraft within a built-up area of a city or town, unless that take-off, approach or landing is conducted at an airport, heliport or a military aerodrome.

III. PRELIMINARY MATTERS

A. Teleconference, June 23, 2009

[4] This teleconference was held before the Chairperson of the Tribunal at that time, with representatives of the Applicant and the Minister appearing. The purpose of the teleconference was to discuss matters relating to disclosure in two separate files: the current matter and another one subsequently withdrawn by the Minister. While no written directions were given as a result of this teleconference, a note to file indicates that the Minister was directed to provide the Applicant with the names of his witnesses and their can-say statements, and also that another teleconference was to be held on July 28, 2009. This teleconference did not, in fact, take place. Although the Minister's representative provided material to the Applicant's representative, the latter was not satisfied with that material and yet another teleconference was scheduled to be heard on December 10, 2009.

B. Applicant's Notice of Motion dated November 30, 2009

[5] This Motion was also argued at the teleconference that took place on December 10, 2009. The Motion requested that five separate orders be made.

(1) Requested Order #1

[6] Requested Order #1 reads as follows:

The proceedings by the Minister of Transport against the Applicant be quashed by reason of the filing by facsimile on November 20, 2009 by the Minister of Transport directly with the Transportation Appeal Tribunal of Canada 12 pages consisting of a covering letter and statements containing un-sworn, unfounded and inflammatory allegations against the Applicant which statements have irretrievably prejudiced the Applicant's right to a fair hearing...

[7] The facsimile referred to in the first Requested Order included materials that were part of the disclosure package that had been sent to the Tribunal in error. These materials were immediately returned to the Minister by the Tribunal's Registry. Both parties agreed that it had been improperly sent and should not be a part of the record. In fact, it did not form part of the record since the originals had been returned to the Minister and no copies were kept on file. Even if the material had been retained on the record, it is part of the Tribunal Member's function to determine the weight to be given to material before the Tribunal that can later be confirmed or tested during a hearing. To hold that such information jeopardizes irretrievably an Applicant's right to a fair hearing, is to ignore that function. On this basis, I denied the Motion.

(2) Requested Order #2

[8] Requested Order #2 reads as follows:

An order that the said covering letter of the Minister of Transport dated November 20, 2009 and all attachments thereto as well as previous letters of Counsel for the Minister of Transport dated May 27, 2009, July 22, 2009 and August 19, 2009 be expunged…

[9] This request was made on the basis that the documents referred to contained unsolicited evidence and arguments that prejudiced the Applicant's right to a fair hearing. I denied this Motion on the basis that section 5 of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c.29 ("TATC Act"), which sets out the powers of the Chairperson of the Tribunal, including the power to appoint the necessary staff and to supervise and direct "the conduct of the work of the Tribunal and the management of its internal affairs", is broad enough to allow the Registry to determine what should remain on file in the absence of legal prohibition. Any arguments contained in the documents should not prejudice the Applicant since they would be the subject of discussion at the Review Hearing and determined on that basis.

(3) Requested Order #3

[10] Requested Order #3 reads as follows:

An Order that the Minister of Transport disclose full particulars and details of the dates, locations, lecturers, attendees, curriculum, guidance material, training materials, syllabus and all material generated, taught, lectured on or used in the "Joining Forces lectures" referred to in the Investigator's Comments EMS Case Report Paragraph 5.2 "Analysis" page 6 of 9 signed by one Richard J.C. Gagnon dated 2007-11-06…

[11] The Applicant's representative acknowledged that she had received some material on these lectures but had expected more, while the Minister's representative stated that all existing material had been provided. I agreed that the Minister could not be expected to provide material that did not exist.

(4) Requested Order #4

[12] Requested Order #4 reads as follows:

An Order that the Minister of Transport provide disclosure of the violation/enforcement proceedings against the helicopter operator, owner and/or pilot who was charged with an offence after landing at Little Grand Rapids Indian Reserve as mentioned in materials disclosed in enforcement proceedings against [name withheld] of Custom Helicopters Ltd., which disclosure was directed during the teleconference herein chaired by Chairperson Faye Smith the 23rd day of June, 2009…

[13] Since this Order related to a matter not before the Tribunal, I ruled that it need not be disclosed.

(5) Requested Order #5

[14] Requested Order #5 reads as follows:

Such Order as to Costs or such further and other relief as this Honourable Tribunal may find just.

[15] This Order was denied on the basis that it met none of the circumstances established in subsection 19(1) of the TATC Act, which sets out the limited authority of the Tribunal to award costs.

C. Federal Court Ruling on the Application for Judicial Review

[16] On April 14, 2010, the Applicant filed an Application for Judicial Review by the Federal Court concerning the decisions on the Motion set out above and of a "Ruling" of the Registry denying a Notice of Appeal to a full Panel of the Tribunal. On June 10, 2010, the Minister filed a Motion before the Federal Court asking that the Application of the Applicant be dismissed for prematurity, or alternatively, that the Application be stayed until the final determination had been rendered by the Tribunal; and, as a further alternative, that directions pursuant to Rule 54 of the Federal Courts Rules, SOR/98-106, concerning procedures, be followed. On July 6, 2010, the Court issued the following Ruling:

Upon the hearing of the present Motion, on the following terms of Consent and Counsel, a stay of the present Application is ordered pursuant to s. 50(1)(b) of the Federal Courts Act to remain in effect until further order of the Court:

  1. The preliminary procedural and production findings of the Transportation Appeal Tribunal (TAT) [sic] constitute the beginning of the decision-making of the appeal of the regulatory fine of $750;
  2. The preliminary procedural and production findings are subject to scrutiny on a judicial review of the TAT's final decision on the appeal;
  3. The Applicant's presently stated preliminary procedural and production findings arguments are preserved during the stay and the Applicant is at liberty to amend the presently filed Application to include all grounds of judicial review arising from a final decision of the TAT;
  4. The present Application will proceed under the management of Justice Campbell.

D. Motion dated December 14, 2010

[17] On December 14, 2010, the Applicant submitted a Notice of Motion asking that:

  1. The proceedings by the Minister of Transport against William Edward Kipke under Section 7.7 of the Aeronautics Act dated November 27, 2007 be declared null and void because the Minister of Transport committed fatal jurisdictional error in that the Minister of Transport in violation of the principles of fundamental justice and contrary to the rule of law did charge, convict and sentence the said Applicant under the wrong law, that is to say , under a version of Canadian Aviation Regulation 602.13(1) which was not in effect as at July 25, 2007 the date the offence was alleged to have been committed;
  1. The aforesaid proceedings by the Minister of Transport be quashed with an Order of costs against the Minister of Transport
  1. Such Order as to Costs or such further and other relief as this Honourable Tribunal may find just.

[18] The hearing on this matter was scheduled to begin on December 16, 2010, and both parties provided written submissions on an urgent basis; the Minister submitted a response on December 14, 2010, and the Applicant submitted a response the next day. The basis of the Motion was a change in the CARs that came into effect on June 30, 2007, so that subsection 602.13(1) now referred to "an airport, heliport or military aerodrome" instead of "an airport or military aerodrome". Appendix A to the NAMP used the latter phrase in setting out the basis of the charge and the Applicant argued that, by omitting the word "heliport", the Minister relied on a regulation that was no longer in force. The Minister, on the other hand, argued that the wording of a NAMP need not mirror the wording of the provision that was alleged to have been contravened.

[19] At the beginning of the Hearing both parties made oral arguments on the Motion and I made a preliminary ruling denying it. On December 20, 2010, I provided written reasons for this determination; I ruled against the Motion on the basis that a charge must name the provision that is alleged to have been contravened and set out information concerning:

  1. the date and location of the alleged contravention;
  2. the person against whom the contravention is being alleged;
  3. the conduct that is alleged to have contravened the provision;
  4. the amount of the penalty.

The NAMP included all of the above information. I also noted that the amendment had made no substantive change to the regulation since a "heliport" comes within the definition of "airport" in the Aeronautics Act, R.S.C., 1985, c. A-2 ("Aeronautics Act"), as it is "an aerodrome in respect of which a Canadian aviation document is in force"

E. Motion dated December 16, 2010

[20] On December 16, 2010, the Applicant submitted a Notice of Motion requesting:

  1. The proceedings by the Minister of Transport against the Applicant William Edward Kipke under Section 7.7 of the Aeronautics Act dated November 27, 2007 be dismissed because the Little Grand Rapids First Nation is not at law or in fact a city or town;
  1. Costs against the Minister of Transport as between a solicitor and his client;
  1. Such order as to Costs or such further and other relief as this Honourable Tribunal may find just…

[21] Without objection from the parties, I ruled that this Motion would be determined as part of the Hearing.

F. Notice of Constitutional Question dated December 2, 2010

[22] On December 2, 2010, in accordance with section 57 of the Federal Courts Act, R.S.C., 1985, c. F-7, the Applicant filed a Notice of Constitutional Question raising the following issues:

  1. The constitutional validity of Section 7.7, Section 7.8, Section 7.9, Section 7.91(1) & (2), Section 7.92 of the Aeronautics Act, Chapter A-2 and the constitutionality of the Notice of Assessment of Monetary Penalty dated November 27, 2007 issued there under against the Applicant by the Respondent Minister of Transport;
  2. The applicability of Section 602.13(1) of the Canadian Aviation Regulations SOR/96-433 to and the effect upon the aboriginal rights and the aboriginal lands of the Little Grand Rapids First Nation and other First Nations in the Province of Manitoba and the constitutionality of the practice by the Minister of Transport of applying and enforcing bureaucratic draft "Guidance Criteria" concerning said Section as if same were law;
  3. 3. The constitutionality of applying and enforcing certain common law decisions relied upon by the Minister of Transport with reference to defining "built up area" pursuant to said Section 602.13(1) relative to the Little Grand Rapids First Nation and to other First Nations in the Province of Manitoba.

[23] On December 9, 2010, the Applicant's representative filed a Solicitor's Certificate of

Service certifying that she had notified the Attorney General of each province and territory of Canada regarding the above-indicated Notice of Constitutional Question.

[24] At the beginning of the Hearing, I stated that while the questions needed to be determined in the context of all the evidence presented, it might be helpful to give a brief explanation of the issues involved. Although there was some discussion on this point, in the end, the issues were left as stated above.

G. Notices of Intention to Intervene

[25] On December 9, 2010, a Notice of Intention to Intervene was submitted on behalf of Custom Helicopters Ltd. ("Custom") by James Hawes and another Notice of Intention to Intervene with the same date was filed on behalf of Yukon Helicopters Ltd. ("Yukon") by Brian E. Robertson. Both Notices appointed the Applicant's representative as their counsel. These Notices did little more than state an intention and, in response, the Registry requested that the Applicant's representative provide an explanation as to how the proposed Intervenors would add information that would not be available from the current parties. The request established deadlines for the responses and for any reply by the Minister. At the time of her response, the Applicant's representative included further Notices of Intention to Intervene from Little Grand Rapids First Nation, St. Theresa Point First Nation, and later that day from Wasagamack First Nation. In the response, the Applicant's Representative argued that to exclude the Intervenors would be to exclude the participation and evidence of those most affected by the decision, who would be able to assist the Tribunal with evidence not otherwise available; would bring special knowledge and aviation expertise concerning the issues and facts to be tried; and would be able to speak to justification under section 1 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 ("Charter"). She stated that this matter raises issues of the application of subsection 602.13(1) of the CARs to helicopter operations on Indian reserves and that these issues can only be understood with the participation of the Intervenors.

[26] In response, the Minister argued that there is no provision authorizing intervenors in the TATC Act, the Transportation Appeal Tribunal of Canada Rules, SOR/93-346 ("TATC Rules"), the Aeronautics Act, R.S.C., 1985, c. A-2, or the CARs. Furthermore, the application for intervenor status was not brought in the proper manner. According to the jurisprudence, such status should only be granted in order to assist a court by providing a different perspective, and should not merely be a reiteration of the position taken by a party; nor can an intervenor raise new legal issues. The fact that all the proposed Intervenors are represented by the same counsel, who also represents the Applicant, suggests that they would merely repeat the position of the Applicant.

[27] At the beginning of the Hearing, I stated that, on the basis of section 4 of the TATC Rules, I was prepared to treat the Notices of Intervention as if they had been made under section 109 of the Federal Courts Rules. At the same time, I noted that the Notices did not satisfy the requirements set out in subsection 109(2) of the Federal Courts Rules in that they did not indicate the addresses of the proposed Intervenors nor, more importantly, did they clearly state how their "participation will assist the determination of a factual or legal issue related to the proceeding". All the Notices used the same wording and on that basis it seemed likely that any evidence given would be unduly repetitive. I held that I was not satisfied at that point that there was an adequate basis to allow any of the proposed Intervenors to have that status, but that I was prepared to hear further submissions on the matter as long as such submissions were specific as to the nature of the proposed participation and as to how the intervention would assist me in the determination of the issues before me. I also noted that the Applicant was free to adduce evidence on these matters through his own witnesses.

[28] The Applicant's representative argued that the interventions were necessary to represent the interests of First Nations in a situation where the Minister is attempting to impose municipal status on reserve lands in violation of aboriginal rights. Custom has an interest since it alleges that Transport Canada has indicated that it is prepared to charge the company vicariously if there are any further alleged infractions. Yukon has an interest in the constitutional question since there is a strong link between Yukon and charges brought against Yukon while it was assisting Custom.

[29] Two proposed Intervenors testified as to the purpose of their intervention and the assistance they could give the Tribunal. James Hawes is the President of Custom and its accountable executive. As an intervenor, he would show the necessity of helicopter operations and landing areas for the purpose of keeping communications open and services available for the Royal Canadian Mounted Police ("RCMP") and Indian bands. He referred to Transport Canada's "prohibition letter" of January 21, 2008, which in limiting landings on various Indian reserves, had the effect of cutting off helicopter services necessary for health and safety. His position is that a finding that Mr. Kipke has contravened subsection 602.13(1) of the CARs would have a direct effect on helicopter operations on Indian lands.

[30] Mr. Robertson of Yukon identified the landing location on a map of the area. He explained that he has 24 years of experience operating in northeastern Manitoba. He also explained the role of helicopters in serving Indian reserves, especially during the freeze-up and break-up of ice on water-access areas. He has also had experience in determining what constitutes a built-up area in the course of his flying as part of his business.

[31] I ruled that I was prepared to allow Custom to intervene and that Mr. Robertson could do so, on behalf of Yukon, but that I would limit Mr. Robertson to testifying as to what constitutes a built-up area. I also recognized that Indian bands have an interest in the outcome, though I was prepared to accept only one Indian band as an intervenor. I further ruled that I would hear one First Nation intervenor, but only one. On December 17, 2010, a Notice of Intention to Intervene was filed on behalf of the Assembly of Manitoba Chiefs ("AMC"). I repeated that I would only allow one First Nation intervenor and the Applicant stated that it would be the AMC, which was also appointing the Applicant's representative as its Counsel.

[32] The issue was raised as to whether the Intervenors could remain in the Hearing room while evidence was being given, either in relation to the allegations against Mr. Kipke or by other Intervenors. While I ruled that I would allow the Intervenors to remain if that was what they themselves decided, there was a likelihood that their evidence would be subconsciously influenced by what they had heard and thus would be given less weight. It would also mean that they would not be able to give any evidence in relation to Mr. Kipke. On this basis, the Intervenors decided not to be present in the Hearing room.

[33] After hearing James Hawes' evidence at the Hearing, however, I ruled that there was nothing in his evidence that was outside the scope I had allowed for Mr. Kipke's witnesses and that I would be considering his evidence as being in support of Mr. Kipke rather than as an intervenor.

IV. EVIDENCE

A. Minister

(1) Constable Evan Robert Willcock

[34] At the time of his testimony, Constable Evan Robert Willcock had been a member of the RCMP for four and a half years and was stationed at the Little Grand Rapids Indian Reserve from July 2006 to July 2008. He lived at the RCMP compound in the southwest portion of the community. He located the compound on an aerial map of the Reserve (Exhibit M-1) and also pointed out the area of the Reserve where people live. The map is from 1986 and somewhat out of date, but he located various buildings as they existed in 2007. These included the band office, school, day care, nursing station, workshops, and water treatment plant. He noted that houses near the water plant had running water; others were served by a water truck delivering treated water. He located two stores, one of which occasionally sold gas. There was also the Manitoba Telecom Services ("MTS") building where most of its work was carried out (the old MTS site), Manitoba Child and Family Services, and two group homes providing foster care. Recreational activities took place at the school; nearby there was a hockey rink and baseball diamond. There was also another baseball diamond on the Reserve (further references to the ‘baseball diamond' are to this one throughout, unless stated otherwise). He stated that the houses were divided into a number of neighbourhoods and that he thought the number of houses had close to doubled between 1986 when the map was made, and the time that he was posted there.

[35] He also identified the off-Reserve community of Little Grand Rapids on the north-side of the water that separates it from the Reserve. He identified the Northern Store that sells groceries and includes the post office, the airport, a fishing lodge, the RCMP garage, a group home, and a Manitoba Conservation building used mainly for firefighting.

[36] He introduced a diagram of the RCMP compound that he had made (Exhibit M-2); it was not to scale and a number of additions were made during his testimony. Ultimately, it showed the location of four houses and the trailer in which he lived; the detachment building, which includes offices and holding cells; a large gasoline holding tank; the garage where vehicles are kept; the generator; the exhibit locker; a diesel tank that holds approximately 200 gallons; a water treatment plant and gas shed; two parking areas; an indication of the shoreline; the RCMP dock; and the power lines throughout the compound. He also explained that there was a steep grade going down to the dock and a ditch across the yard of the house occupied by Constable Clayton Catellier.

[37] He described the alleged contravention that occurred on July 25, 2007. He was off-duty when he heard the noise of a helicopter, which was much louder than they normally sounded to him. He went outside of his house with his wife and her parents and saw that a helicopter was hovering very close to Constable Catellier's house in an area where there were power lines. He estimated that the body of the aircraft was about 45 feet from the house, 15 to 20 feet from the road, 30 or 40 feet from the RCMP garage, and 60 to 70 feet from the bulk gas storage tank.

[38] When asked if he had concerns about helicopter safety in the north, he replied that he felt that there should be designated areas for landings. Although he had no personal safety concerns at the time of the incident, he knows that helicopters can still cause serious injury while their rotors are spinning.

[39] Under cross-examination he agreed that, while he was stationed on the Reserve, he prepared a hand-drawn map of the residential area showing each building and naming its occupant. He identified photographs of portions of the map showing various neighbourhoods (Exhibits A-1 to A-6), and described them as they were colloquially known. He also identified photographs of the area around the school (Exhibits A-7 to A-9). He said that he was not stationed at the Reserve at the time of a helicopter landing in the schoolyard. He agreed that the population is mainly situated along the shoreline.

[40] At the time of the incident on July 25, 2007, his impression was that helicopters were to land at the baseball diamond. He did not know where the helicopter went after taking off from the RCMP compound.

[41] He stated that he feels that the Reserve community has the amenities of a town. While the roads are not paved, most are gravel. Mail is received through General Delivery at the Northern Store. There is a nursing station at the Reserve.

[42] He agreed that people use boats in the summer and skidoos and trucks in the winter for transportation across the lake. While he agreed that there are no restrictions on the use of skidoos on reserve lands, he pointed out that some Manitoba municipalities within the area of his current posting have by-laws concerning the use of skidoos, and others do not. He agreed that helicopters are essential for transporting people across the water dividing the Reserve from Little Grand Rapids during the period when the water is freezing or the ice is breaking up (freeze-up and break-up).

[43] He acknowledged that the diagram of the RCMP compound is not to scale and said that he had made it around November 2009 during discussions with the Minister. He knew that MTS and Manitoba Hydro ("Hydro") had an agreement with the RCMP that allowed them to park their trucks in the compound in order to avoid vandalism, but was not aware of any agreement that would have allowed helicopters to land at the compound. When he had been transported by helicopter, he had always landed at the baseball diamond; he was not aware of any limitations on its use as a landing site.

[44] There was some discussion about the distances from the helicopter's landing spot to various parts of the compound, although no conclusion was reached. He identified two other photographs of the helicopter landing (Exhibit A-12) as being recently discovered photographs taken by his wife.

(2) Sergeant John Robert Raffle 

[45] Sergeant John Robert Raffle has been a member of the RCMP for 21 years and was stationed at Little Grand Rapids from May 2006 until August 2008. He described Little Grand Rapids as a community divided by the Berens River System. On the north side are the airport and the Northern Store; on the south side, the Reserve side, is the main community spread out along the waterfront. While the various roads in the community do not have official names, each road or bay has an unofficial name. The main part of the community has a nursing station with a nurse's residence, Child and Family Services, the school, the Band Office, the Band maintenance building, and a store. The Band Office is a large log building that houses the Band Council and community services; there is also a community hall. The school goes to Grade 9, has thirty teachers, a principal and vice-principal, some counselors, as well as a day-care and gym where some community functions are held. There are two baseball diamonds; one at the school and another located in a field (as noted above at paragraph [34]).

[46] The population varies from about 1 600 to 2 000, depending on whether the high school students are at home. He estimated that there are between 200 and 300 houses on the Reserve. Most of these houses obtain their water from an external tank served by a water truck that provides treated water; the others have piped water.

[47] The Reserve is governed by an elected Chief and Band Council. Each councillor must have at least three nominators to run for office and once elected, is given a specific portfolio. The Council acts by resolution and their resolutions must be approved by the federal department, Department of Indian and Northern Affairs Canada ("INAC")—now Aboriginal Affairs and Northern Development Canada ["AANDC"])—as being within the federal government's constitutional powers. In addition, some provincial laws such as the Highway Traffic Act, 1985, C.C.S.M., c. H60, and some federal laws such as the Criminal Code, R.S.C., 1985, c. C-46, apply on the Reserve.

[48] He was shown Constable Willcock's diagram of the RCMP compound (Exhibit M-2) which he added to on a separate sheet (Exhibit M-4), showing additional areas of the RCMP compound, including the area where the helicopters had been landing. After he arrived in Little Grand Rapids, Sergeant Raffle withdrew permission to land in that area since he considered it too close to the roads and houses on the compound. He also did not authorize helicopter landings on the shore where there had been a practice of picking up MTS workers. He spoke to these workers, telling them that helicopters could not land or hover there to pick them up. The practice began when MTS was given permission to park its truck at the RCMP compound to avoid the earlier vandalism that had damaged another vehicle. The helicopters would hover just over the rocks along the lakeshore while the workers loaded their equipment and boarded the aircraft. Sergeant Raffle said this area was about 30 feet from the deck of his house and that there was considerable noise and debris.

[49] On the date of the incident there were about 10 individuals residing at the RCMP compound. Just after 4:00 p.m. on July 25, 2007, after his shift had ended, he was still in his office completing paperwork when he heard the very loud noise of a helicopter. He went outside and saw it hovering over the road near the RCMP garage. The MTS truck had entered the compound and parked at that moment. There were two workers in the truck and Sergeant Raffle told them that he did not want the helicopter to land at the compound, but that they should go to the baseball diamond instead. He and one worker ducked behind the truck, while the other went to the helicopter, which was then beside Constable Catellier's house, and spoke to the pilot who then took off. The workers were then driven to the baseball diamond. It was a windy day and, before it landed, he could see the rotors of the helicopter were rocking and the satellite dish on the house was moving. During testimony, he reviewed a photograph of the incident (Exhibit M-3) and identified the various structures in the photograph and he also pointed out the legs of the MTS worker who spoke to the pilot. At that time, the helicopter would have been about 30 feet from Constable Catellier's house and 20 feet from the truck that he was behind. The helicopter was on a grassy area with a downward slope that is about two and a half feet below the adjacent road.

[50] That same day sometime after the incident, he called Custom and spoke to Brian Hawes. Brian Hawes indicated that these things happen in the north and that the pilot was flying to the community for the first time and was landing where he had been directed by MTS. Later, Brian Hawes called Sergeant Raffle to identify the pilot as "Bill" Kipke, who had reported to Brian Hawes that he had been under pressure from MTS to land there.

[51] The next day, Sergeant Raffle sent an email to Richard Gagnon (Exhibit M-5), a Transport Canada inspector who had provided some training on aviation to the RCMP detachment. He described the incident in the email.

[52] Later during his posting, Sergeant Raffle assisted the Band in trying to design and repair a helicopter landing site, and he believes that one now exists. He was aware of correspondence from Transport Canada concerning landing sites and that at one point there had been a threat from Transport Canada to prohibit all landings on the Reserve. In fact, there was never a time when helicopter services were unavailable. His understanding is that landings took place at the baseball diamond until the new MTS site was completed.

[53] Under cross-examination, he identified photographs showing different views of the old MTS site (Exhibits A-13 and A-14). He was aware that Transport Canada was putting pressure on the Band to build a heliport and would not be surprised if specific restrictions had been placed on landing. He was not aware, however, of any such restrictions on July 25, 2007.

[54] He agreed that MTS wanted to park its truck at the RCMP compound to avoid it being vandalized. He thought that the (northern) airport side of Little Grand Rapids is not a separate community since only about four people live there; the rest of the workers commute from the Reserve. The Crown land north of the water also has the same postal code as the Reserve.

[55] He agreed that the Reserve has no sidewalks; it does have streetlights and the houses have running water, although the source could be an external water tank rather than pipes from the treatment plant.

[56] He explained that the 15 000 litre gas tank on the compound was to provide fuel for RCMP vehicles. This is the practice at northern detachments since it is less expensive than buying gas locally.

[57] He was shown an exemption from subsection 602.13(1) of the CARs for certain sites, dated April 10, 2008 (Exhibit A-16), and agreed that it listed the RCMP compound and the baseball diamond as acceptable landing sites. He said that he had not been consulted on the exemption and would not have agreed to include the RCMP compound because he felt it was not a safe place to land. He agreed that this exemption was the result of a letter from Transport Canada to Provincial Helicopters Ltd. ("Provincial"), dated January 21, 2008, which in turn was attached to a letter sent from Provincial to the Little Grand Rapids First Nation (Exhibit A-17). He said the Transport Canada letter "blocked" landings by putting restrictions on where the helicopters could land. He felt that this was an attempt to get the bands from the affected reserves to provide heliports and he tried to assist in a resolution.

[58] At that point, his opinion was that the only safe landing site while the new MTS site was being prepared was the baseball diamond.

[59] He confirmed that he had spoken to the MTS workers, forbidding landing at the RCMP compound, before July 25, 2007. He had brought the matter up during general conversations.

[60] During re-examination, he stated that there were no helicopter landings at the RCMP compound after July 25, 2007.

(3) Inspector Richard Joseph Camille Gagnon

[61] Inspector Richard Joseph Camille Gagnon was employed at Transport Canada from January 1993 to October 2009 and was previously a member of the RCMP from January 1974. At the time of the incident, he was a civil aviation inspector in the Civil Aviation Enforcement branch in Winnipeg and testified that he is the holder of an airline transport pilot licence with a multi-engine rating.

[62] Inspector Gagnon introduced an email he received from Sergeant Raffle on July 26, 2007 (Exhibit M-5) and a print-out from the Transport Canada Enforcement Management System ("EMS") that included a copy of the email and a record of the subsequent steps taken in the investigation of the incident (Exhibit M-6).

[63] Upon receiving the email, he contacted Custom and asked for the aircraft journey log related to the incident. This log was provided and showed that on July 25, 2007, the helicopter registered as C-FZSJ was piloted by Mr. Kipke (Exhibit M-7). At this point in the Hearing, the parties agreed that the helicopter was properly registered and that Mr. Kipke held a valid licence allowing him to operate such an aircraft. Inspector Gagnon agreed that he had been provided with a copy of the photograph of the helicopter landing, taken by the RCMP (Exhibit M-3). He also stated that he has previously visited the location and was somewhat familiar with its surroundings. He felt that there were safety concerns in that the helicopter landed close to a dwelling, within 15 to 20 feet (this statement was made over the objections of the Applicant). Furthermore, it seemed that there was a ditch to one side of the landing spot and he was aware that there was a slope to the land.

[64] On August 7, 2007, Inspector Gagnon sent Mr. Kipke a Letter of Investigation (Exhibit M-8) stating that he was being investigated for a possible infraction of section 602.01 of the CARs. The letter pointed out that he was not obligated to participate in the investigation but that if he did, any information that he gave could be used as evidence against him. On August 29, 2007, Inspector Gagnon had a telephone conversation with Mr. Kipke. During the conversation he asked Mr. Kipke if he understood the warning in the Letter, and upon receiving a positive reply, conducted an interview based on nine questions that he had previously prepared (Exhibit M-10) (Exhibits M-8 and M-10 are often later referred to as a "warned statement").

[65] In their conversation, Mr. Kipke confirmed that he was the pilot-in-command ("PIC") of the helicopter on July 25, 2007. He worked for Custom for 10 or 11 years, retired, then was asked to come back on a part-time basis. He had never been to Little Grand Rapids before July 25, 2007. He had been told by "Brian" at Custom that the MTS workers would tell him where to land. On July 25, 2007, he picked up two MTS staff and dropped them off at the MTS Tower (new MTS site). At the end of the day, he ferried the MTS staff who had come by aircraft to the airport. They told him that the remaining staff were taking the MTS truck back to the RCMP compound and would be standing where they wanted to be picked up. He returned to the Reserve and flew around but received no signal and assumed that they wanted to be picked up at the RCMP compound and also assumed that there was permission from the RCMP to land there.

[66] Inspector Gagnon said Mr. Kipke told him that he was not aware of the Work Plan that had been approved by Transport Canada for Custom (Exhibit M-12). Inspector Gagnon explained that Custom had been given an authorization by another Branch of Transport Canada (Commercial and Business Aviation) to land in the built-up area of a city or town, which was valid until June 30, 2007 (Exhibit M-11). This authorization was based on a work plan submitted by Custom showing the old MTS site as the landing site.

[67] Inspector Gagnon stressed that Mr. Kipke was very polite and professional throughout this conversation. After the conversation, Inspector Gagnon drafted an Aviation Enforcement Case Report (Exhibit M-13) concluding that there had been a contravention of section 602.13 of the CARs (as opposed to section 602.01 of the CARs as alleged in the Letter of Investigation, Exhibit M-8). Because of the reduced severity of the contravention, he made no recommendations regarding aggravating or mitigating factors. He explained the procedure with regard to such reports. The draft is reviewed by the inspector's supervisor and then by the enforcement manager. They may raise questions concerning it, and once satisfied, they sign off. The manager makes the final decision and returns it to the inspector as either, approved, approved with changes to the violation, rejected with no violation, or an oral warning. In this matter, after the approval of the Report by his manager, Inspector Gagnon prepared the NAMP, dated November 27, 2007, setting out the minimum penalty of $750, and sent it to Mr. Kipke by registered mail.

[68] Inspector Gagnon testified that there is no definition for "built-up area" in the Aeronautics Act or the CARs and that each case must be determined on its own merits. He added that all buildings are assumed to be occupied. The determination of whether a built-up area is part of a town is based on whether it looks like a normal town, including things such as a nursing station, police station, convenience store, roads and a school. He noted that Custom must have considered Little Grand Rapids a town since it submitted a work plan. Finally, he said he was not aware of any guidance material relating to built-up areas and did not rely on any such material in negotiations.

[69] Under cross-examination, Inspector Gagnon was shown Policy Letter 145, as printed on May 15, 2007 (Exhibit A-18). Inspector Gagnon said he was not familiar with it and that it would have been prepared for the Air Carrier Inspector Manual which is used in a different Branch (Commercial and Business Aviation) of Transport Canada. The Enforcement Branch uses its own manuals. He could not say if the authorization issued in accordance with the Work Plan (Exhibit M-12) was based on Policy Letter 145.

[70] When asked about the description of "city or town" in Policy Letter 145, he replied that he did not know whether the Little Grand Rapids Indian Reserve is incorporated as a municipality nor was he aware whether his supervisor or manager had any knowledge of the guidance material in the Policy Letter.

[71] Inspector Gagnon repeated that he considered the major mitigating factor in this matter to be Mr. Kipke's cooperative attitude and that he did not consider the RCMP's earlier allowance of landings at the compound to be a significant mitigating factor. While the RCMP might have permitted landings at the compound in the past, the permission was not to land in someone's backyard.

[72] In giving Mr. Kipke a warning in the Letter of Investigation (Exhibit M-8), Inspector Gagnon did not inform him of his right to counsel because he was not having him detained or arrested. He confirmed that Mr. Kipke told him he was not aware of Custom's Work Plan (Exhibit M-12) and agreed that the authorization respecting the Work Plan had expired by the time of the incident; however, he also said that his decision was not influenced by any failure to follow the Work Plan.

[73] Inspector Gagnon recalled that he attended a meeting with Frank Roberts, a fire captain with the Winnipeg Fire Department, and James Campbell, the safety manager at Custom, although he could not remember the specific date. In response to a question from the Applicant's Representative regarding the meeting, he vehemently denied, however, that he said he was proceeding against Mr. Kipke because Brian Hawes had "double-crossed" (the Applicant's Representative's expression) him on another matter involving another Custom pilot.

[74] Under re-examination, Inspector Gagnon confirmed that Policy Letter 145 (Exhibit A-18) had been issued by a different Branch of Transport Canada and that he had received no training from that Branch concerning guidance criteria. When shown Constable Willcock's wife's photographs of the July 25, 2007 incident (Exhibit A-12) at the Hearing, Inspector Gagnon stated that they confirmed his decision of the charge assessed to Mr. Kipke.

B. Applicant

[75] Before the Applicant's representative called her first witness, there was a discussion of how to treat her binder which holds 179 numbered pages of proposed documentary evidence that had been prepared for use in the Application for Judicial Review (discussed above at [16]). After some discussion, it was decided to remove the Table of Contents and mark it "R-1" for reference and to mark the binder as "R-2". I stated that the individual pages in R-2 would only be considered if they were properly introduced as evidence.

(1) James Cruise Campbell

[76] James Cruise Campbell has been the safety manager at Custom since September 26, 2007. He holds a commercial pilot licence for single and multi-engine fixed-wing aircraft although he no longer flies commercially. He is familiar with the Little Grand Rapids Indian Reserve since he grew up 80 miles south of the area and his family traded with members of the band. He identified the Reserve on the Manitoba Conservation Map of Manitoba (Exhibit A-20) and an Energy, Mines and Resources Canada (now Natural Resources Canada) map from 1983 of Little Grand Rapids (Exhibit A-21). On the latter map, he identified the Little Grand Rapids airfield and the Pauingassi Indian Reserve and pointed out that the former Reserve is only accessible by helicopter during the freeze-up and break-up period. He also introduced a map of Island Lake showing three Indian reserves (Exhibit A-22). This map was admitted subject to considerations of relevance.

[77] As part of his duties as safety manager, he dealt with both Mr. Kipke and Transport Canada with regard to the allegations against Mr. Kipke. He also acted as a liaison in another earlier charge arising from the same section of the CARs as Mr. Kipke's charge with regard to a landing at the old MTS site. Custom was not aware of any other charges that had been laid under the section and on that basis decided to defend the charge against Mr. Kipke. In reaching this conclusion, Custom was influenced by the fact that the Manitoba statutes, the Municipal Act, S.M. 1996, c. 58 ("Municipal Act"), and the Northern Affairs Act, S.M. 2006, c. 34 ("Northern Affairs Act"), both specifically exclude Indian reserves. Custom also considered the description of city or town in Policy Letter 145 (Exhibit A-18).

[78] The next portion of Mr. Campbell's evidence was devoted to the introduction of most of the documents in R-2 as Exhibits A-24 to A-70. Most of these documents relate to activities that took place after the date of the alleged contravention and will be discussed in the context of evidence given in relation to those events. The documents did include, however, letters to Custom from Transport Canada dated March 1, 2007 (Exhibit A-27) and April 24, 2007 (Exhibit A-28). The first letter informed Custom that Transport Canada would be conducting assessments of helicopter landing sites at various reserves; and the second informed Custom that various potential dangers existed at the sites which should not be used, and invited the First Nations, who were sent emails of the letter, to discuss more appropriate sites with Transport Canada. On July 6, 2007, a follow-up letter was sent from Transport Canada to the Chief of the Little Grand Rapids First Nation (Exhibit A-29) reminding him of the earlier letter and again suggesting that they consult.

[79] Three days after joining Custom, Mr. Campbell and Mr. Roberts attended a meeting with Inspector Gagnon in September 2007 regarding the charges. Mr. Campbell had reviewed Mr. Kipke's resume, but attended the meeting primarily as an observer. While Mr. Roberts was reading some material, Mr. Campbell asked Inspector Gagnon why he was charging a pilot with such a stellar record as that of Mr. Kipke. The response was that he would not have done so had he not been double-crossed on another matter by an official of the company. At that point during the meeting, Mr. Campbell said he was not aware of the incident mentioned.

[80] At the meeting, Mr. Campbell was also shown at least one photograph (Exhibit M-3) and possibly others. He feels that the photograph showed that there was a clear approach area for the helicopter from the lake and he felt that Inspector Gagnon realized this.

[81] Mr. Campbell identified an aerial photograph of the area (Exhibit A-71) that showed both the Little Grand Rapids Indian Reserve and the Crown land area with the airfield and the Northern Store. He agreed that both areas are commonly called Little Grand Rapids. He was last at Little Grand Rapids in 2002 when he was operating with Sowind, an Indian-owned airline based out of the Reserve. He feels that there was little change on the Reserve between that time and the time that the aerial photograph was taken in 1986. He said that there was no restaurant, cafe or hotel on the Reserve back then.

[82] Mr. Campbell referred to a letter from Transport Canada, dated January 21, 2008 (Exhibit A-34), which prohibited landings at various sites on Indian reserves including the Manitoba Hydro site (old MTS site), and baseball diamond at Little Grand Rapids, and pointed out that operators who use these sites could be subject to enforcement action. Mr. Campbell was concerned that pilots were confused about where they could land and afraid of enforcement action against them. He pushed for a meeting, which took place on April 9, 2008, at the office of Grand Chief Ronald Grant Evans of the AMC. This meeting was attended by representatives of Transport Canada, Northern Affairs, Emergency Measures, Medical Services, INAC and various helicopter operators. A mass evacuation of reserves would have possibly been necessary had there been no helicopter services available on the reserves during the imminent break-up period since Health Services had threatened to remove medical personnel if such helicopter services were not available. As a result, an exemption was issued on April 10, 2008, valid until March 1, 2009 (Exhibit A-16), which allowed landings, primarily where they had been before. To some extent, this exemption was based on a series of photographs (Exhibit A-55) showing the various landing sites. This exemption was later extended to May 1, 2009 (Exhibit A-58).

[83] The exemption (Exhibit A-16) listed the "Baseball Diamond" and the "RCMP site" as permissible landing sites at Little Grand Rapids Indian Reserve, but Mr. Campbell does not recall speaking to Transport Canada officials as to what was meant by "RCMP site". He noted that "RCMP site" was not included as a prohibited landing site in the Transport Canada letter of January 21, 2008 (Exhibit A-34).

[84] It was Mr. Campbell's opinion that Custom pilots were not allowed to land at the baseball diamond in September 2007, when he started working at the company. He also stated thatCustom did not generally provide freeze-up and break-up services at the Reserve, rather this was generally done by another helicopter operator.

[85] Mr. Campbell referred to an email from John Henry Ireland of Transport Canada sent to him on November 23, 2007 (Exhibit A-40) explaining that the terms "built-up area" and "city or town" had not been defined but were determined on a case-by-case basis. He did, however, point out that the word "town" does not exclude similar places and "is quite commonly used as a generic term and as including cities and villages." The email also set out distances from buildings, structures and public-use areas that were used in determining whether a site is "within" the built-up area. The email said that these distances had been established as guidelines. The guidelines were in the form of a chart titled "Guidance criteria for a Heliport within the built-up area of a City or Town", and the chart had been used in assessing landing sites on a number of reserves and was attached to the January 21, 2008 letter from Transport Canada (Exhibit A-34). When a request was made on Mr. Campbell's behalf for a copy of the Guidelines after the April 9, 2008 meeting, the response came in an email from Mr. Ireland, dated April 25, 2008 (Exhibit A-53), was that the Guidelines were a draft document sent to him from "headquarters" and not available for public distribution. Until that time, Mr. Campbell said that he had never been told that the Guidelines were only a draft. He did not ask why he had not been told this when they were sent earlier as an attachment. He did not feel that he could give the draft guidelines to Custom pilots as something to be followed "religiously".

[86] Currently, Custom pilots are instructed to land only at the new MTS site. Mr. Campbell is not aware of the clearing behind the nursing station mentioned in the April 23, 2009 letter to Yukon from Geert Dejaeger of Transport Canada (Exhibit A-72), nor does he know if it is currently permissible to land at the baseball diamond.

[87] Under cross-examination, Mr. Campbell agreed it is part of his job to act as a liaison between Transport Canada, Custom, the Band and other parties so that Transport Canada's policies with regard to helicopters might be understood. He confirmed that he was hired by Custom after the incident. He also acknowledged that he has not read all of the Tribunal decisions on this type of charge.

[88] He was referred to a letter from Transport Canada to Custom (Exhibit A-27) stating that Transport Canada would be evaluating frequently used helicopter landing "sites located within built-up areas of towns or communities" and agreed that this letter did not mention specific sites. He also agreed that a further letter to Custom, dated April 24, 2007 and copied to the Chief of the Little Grand Rapids Band (Exhibit A-28), mentioned only the "Hydro yard" and did not include the baseball diamond, nor is it mentioned in the letter sent to Chief Raymond Keeper of Little Grand Rapids First Nation on July 6, 2007 (Exhibit A-29). The first communication mentioning the baseball diamond as a landing site was the prohibition letter of January 21, 2008 (Exhibit A-34).

[89] In response to questions concerning the internal organization of Transport Canada, Mr. Campbell said that, to him, the organization is Transport Canada and he does not know what division within that organization deals with helicopter operations and certified heliports. He acknowledged, however, that he dealt primarily with Messrs. Ireland and Woloshyn with regard to landing sites and that he did not discuss Mr. Kipke with them.

[90] He agreed that the exemption resulting from the April 9, 2008 meeting was drafted more or less on the spot and that the pictures shown to the Transport Canada representative at that time (Exhibit A-55) did not show the "RCMP site". The actual exemption, however, was not issued "for some time" and there might have been further consultation among Transport Canada officials before its issuance.

[91] Mr. Campbell stated that he is clear about what was said during the meeting with Inspector Gagnon in late September 2007, although he was not aware of what was meant by "double-cross". He did not take notes of the meeting and did not mention the statement to the person concerned at Custom, nor did he complain to Transport Canada or to the ethics commissioner. He felt that Inspector Gagnon was comfortable talking to him in that context. At that point, he also anticipated that the whole matter would simply be dealt with.

[92] He confirmed that there was no interruption of service by Custom after July 25, 2007 and that the company used the Hydro site for its operations. He could not say whether there was any interruption in the services from other companies, but he knows that there was frustration on their part.

[93] In answer to a question from me, he confirmed that, from a humanitarian point of view, the most important period for helicopter operations is during the freeze-up and break-up of ice. He said that the potential disruption during these periods was avoided through the meetings with Transport Canada, INAC and Health Canada.

[94] Under re-examination, he confirmed that he does not know what Inspector Gagnon meant by "double-cross".

(2) Frank Charles Roberts

[95] Frank Charles Roberts is a full-time captain with the Winnipeg Fire Department where he has worked for 25 years. He has been flying since 1976 and has a balloon pilot licence, a commercial fixed-wing and a helicopter licence, and has 7 000 hours of accident-free flying. As a firefighter, he works four days on and four days off, so he has also been able to work for Custom and has done so off and on for 30 years.

[96] He is very familiar with Little Grand Rapids and before starting to work as a firefighter, when he worked full-time as a helicopter pilot, he was often there and actually lived there for two periods when Hydro equipment was being installed and when the area was threatened by forest fire. He feels that there has not been much change in the amenities on the Reserve and points out that the new MTS site has no running water and only an electric toilet. While there is currently a road to the new site, when it was being built it could only be walked to. He marked the site on an aerial map of Little Grand Rapids (Exhibit A-74).

[97] One of his functions at Custom is to provide recurrent training and he has provided such training to Mr. Kipke. He found him to be experienced, knowledgeable, well-prepared and very professional. Mr. Kipke has a stellar record and was called upon by Custom to carry out its most difficult jobs.

[98] Recurrent training is heavily focused on emergency procedures including hydraulic failures (similar to a loss of power-steering in a [land] vehicle), tail rotor failures (landing at an unusual attitude) and auto-rotation (engine shut down) and practicing landing in those situations. He also mentioned preparing pilots for pilot proficiency checks (PPCs) which pilots must pass every year and which include written examinations and a flight test. While Mr. Roberts provides training, the actual tests are carried out by the approved company check pilot (ACP) appointed by Transport Canada.

[99] Mr. Roberts testified that there was confusion after the two prior incidents at Little Grand Rapids and that Custom was prevented from landing at the old MTS site that they had used for the past 30 years. He was aware that there was a Transport Canada initiative for change. After Transport Canada objected to the use of the old MTS site, they decided to move to a new site but, as in common in the North, there were delays in its completion. While the site was being prepared, Custom obtained permission to use the old MTS site for landing. This permission was extended four times: to November 14, 2006; February 7, 2007; April 30, 2007; and June 30, 2007 (Exhibit A-75).

[100] During the winter of 2006-07, Custom used a Hydro truck at the Reserve because the MTS truck had been stolen and vandalized. A new truck was brought in but since the garage at the new MTS site had not been completed, arrangements were made to store it at the RCMP compound where it would be secure.

[101] Mr. Roberts himself made many of the landings at the RCMP compound on the rocks or shore. He confirmed that this practice had been allowed and permitted by the RCMP and spoke by telephone to Sergeant Raffle, he thinks in February 2007, who said he felt comfortable with the landings and that the staff enjoyed watching the helicopters [This conversation was brought up over the Minister's objections but I allowed it subject to considerations of weight]. While Custom trains its pilots so that customers can get in and out when the helicopter is hovering, this was never done at the rocks and shore of the RCMP compound, and helicopters were always firmly on the ground. His concern was always to land safely and depending on conditions, he might choose the rocks or the dock or even land inside the compound as was done by Mr. Kipke. He testified that he even flew Sergeant Raffle to check out a boat that might have been in trouble in early July 2007, but that flight was from the new MTS site.

[102] He pointed out that, when landing, helicopter pilots gather information, making sure the area is clear and that they can get in and out safely. He wishes that Transport Canada had handled the matter differently and feels it would have done so if it still had helicopter inspectors based in Winnipeg, as had been the case previously. A good relationship had existed between these inspectors and industry, but after the office moved to Edmonton, it became harder to deal with Transport Canada officials, even by telephone.

[103] Mr. Roberts agreed that he was the safety manager for Custom on July 25, 2007. He believes that at that point, Custom was using the new MTS site for their operations. He believes that Custom did not have permission to land at the baseball diamond. Currently, he does not know if it is permissible to land on the shore.

[104] In his testimony, he pointed out the importance of communications in northern communities and how necessary they are for health and safety. Custom provides services for MTS, which has a very complicated system including towers that are only accessible by helicopter. While he applauds any safety efforts Transport Canada brings forward, Custom has first-hand knowledge of and experience working with First Nations peoples and he, personally, is not about to let them do without.

[105] With regard to the late September 2007 meeting that he attended with Mr. Campbell and Inspector Gagnon, he does not recall the discussion between Messrs. Campbell and Gagnon other than that it was related to another Custom employee and that it might have had something to do with why they were there.

[106] Custom does not do freeze-up and break-up work at Little Grand Rapids Indian Reserve, although it does such work at other reserve communities. Of course, "everyone" (meaning other helicopter companies) will help if there is an emergency.

[107] Under cross-examination, Mr. Roberts confirmed that he was the safety manager at Custom on July 25, 2007; that he provided recurrent training and did occasional line flying; that he did most of the flights to the RCMP compound; that he did not brief Mr. Kipke concerning the flight of July 25, 2007; that he did not witness the landing; and that he was not the person who spoke to Sergeant Raffle about the incident. He agreed that Mr. Kipke was new to the area and had never been to Little Grand Rapids before the incident. The last time that he himself had flown to Little Grand Rapids was sometime in 2007.

[108] He agreed that there have been substantial changes at the Reserve over the past 30 years: these include the movement of the Metis settlement and the nursing station from the Crown land settlement to the Reserve; the establishment of the RCMP compound; some new roads; and a foster home.

[109] He agreed that when the old MTS site was established, it was on the edge of the community and that there has probably been some development around it since that time, although the area to the east remains undeveloped. He pointed out that, even if there has been some development, pilots continually evaluate the safety of landing sites; and that if people are concerned they usually complain. He said that no one lives at the new MTS site although there are bunks that can be used in an emergency.

[110] He said that it is not Custom's practice to take instructions from passengers as to where to land, although their wishes are taken into account as part of the information relevant to choosing a safe landing site.

[111] When he landed at the RCMP compound, it was primarily to pick up MTS workers, although once he brought RCMP officers back to the compound from Pauingassi Reserve. Such landings were always approached from the water and were on or near the shore. When shown the sketches of the RCMP compound (Exhibits M-2 and M-4), he said he had no knowledge of landings on the area marked "clearing" on Exhibit M-4. When he picked up Sergeant Raffle to view the suspect boat (mentioned above), it was from the new MTS site.

[112] He said he was never told by MTS workers that Sergeant Raffle had expressed concerns over landings at the RCMP compound. Mr. Roberts never picked up MTS workers at the baseball diamond and did not apply for an exemption to use it since it was meant for children, although he stated that another company might have used it. He considered the old MTS site safer since it was surrounded by a high fence topped with barbed wire; it had a locked gate; and anyone around could be seen on an approach. The new MTS site is ideal and the only reason that the RCMP compound was being used was because the MTS truck was parked there.

[113] He referred to a letter he wrote to Inspector Gagnon, dated October 2, 2007 (Exhibit A-73), after the meeting of September 29, 2007. At that point he was "passing the torch" as safety manager to Mr. Campbell. Before the meeting, he had the impression from a past conversation with Inspector Gagnon that things could be worked out, but at the meeting it became apparent that this was not going to be the case. He became quite nervous and did not make any notes or make any complaints.

[114] He confirmed that there were no interruptions to Custom's services and that Custom obtained a work permit allowing it to continue to use the old MTS site immediately after the prior incident that had taken place at that locale.

[115] Under re-examination, he confirmed that his comment that there was no interruption in service only related to MTS and did not refer to services during freeze-up and break-up.

(3) James Milton Hawes

[116] James Milton Hawes is the president and one of the owners of Custom, which he founded in 1977. He is the accountable executive and the person responsible for maintenance under Transport Canada rules. He has private pilot licences for fixed-wing and rotor aircraft as well as maintenance engineering certificates since 1969. His son, Brian Hawes, holds a commercial pilot helicopter licence and is the operations manager and senior vice-president at the company.

[117] He has known Mr. Kipke since 1997 and introduced a Certificate of Bravery issued to Mr. Kipke by the Right Honourable Lloyd Axworthy (Exhibit A-76), the then Minister of Transport, for his activities during a search-and-rescue mission. He feels that the charge against Mr. Kipke is not justified because the flight was carried out in a manner that was safe; it was not in a built-up area; and there was permission from the RCMP to land at the compound. It was his understanding that the RCMP had condoned landing at its compound and that this had been confirmed several times by Mr. Roberts.

[118] Custom has flown in the area of Little Grand Rapids since 1977. Although it has done some work for the RCMP and for Hydro, its main business has been with MTS relating to communications. Flights for both were carried out from the old MTS site.

[119] The flights on July 25, 2007 were flown so that MTS personnel could restore telephone services. Mr. Kipke had been asked to pick up these technicians at the Little Grand Rapids airport, take them to the MTS site, and then later return them to the airport. The flight in question was the closing flight of the day [I allowed these questions over the objection of the Minister that they were double hearsay, but pointed out that any answers were subject to considerations of weight].

[120] James Hawes said that for the previous 33 years, Custom had a good landing site at a fenced compound where the landing and take-off paths were over trees, with no houses in the area. He identified this site as the "Hydro fenced locked compound" (the old MTS site) shown in the photographs at Exhibits A-13 and A-14. This site is no longer used because Transport Canada's permission to use it lapsed and MTS and Hydro built a new site outside the settlement in "unorganized territory". He referred to a request from Custom, dated November 8, 2006, for an Air Operator Authority allowing them to use the old MTS site (Exhibit A-75) because Transport Canada considered it to be in a built-up area and had "violated" a Custom pilot for landing there. The Authority was granted and extended until June 30, 2007. After that date the new MTS site was used for Custom's operations.

[121] Mr. Hawes referred to the letter dated January 21, 2008, from Transport Canada (Exhibit A-34) that listed a number of sites where landings were prohibited. He said that these sites were all on Indian reserves in northern Manitoba and used for the movement of goods and to facilitate the movement of patients from nursing stations who need further care such as those, for example, at the dialysis unit in Garden Hill. During the freeze-up and break-up, the only way this can take place is by helicopter. Custom had flown such patients in the past but after the letter, it could no longer do so.

[122] Mr. Hawes referred to the attachment to the letter, the Guidance Criteria chart (Exhibit A-34). He said it was mentioned at an earlier meeting where he got the impression that it was part of Transport Canada's rules and regulations. He believes that it was the basis on which the letter was written.

[123] With regard to the earlier alleged violation of November 1, 2006, he said that it was based on a complaint from another helicopter company and was investigated by Inspector Gagnon. Apart from the Mr. Kipke matter, there have been no other complaints against Custom from any First Nation and no other complaints against Mr. Kipke. No other concerns were expressed over the use of the old MTS site and there have been no concerns over the use of the new MTS site.

[124] He referred to the letter dated March 1, 2007 from Transport Canada (Exhibit A-27), explaining that Transport Canada would be reviewing various sites, and to the one dated April 24, 2007 (Exhibit A-28), stating that landing sites at various reserves are in built-up areas and should not be used. This letter listed various reasons why the sites should not be used, including a lack of fencing. At that point, Custom was only landing at the old MTS site, which was fenced.

[125] Mr. Hawes believes that the problems in the northern reserves began with the letter from Transport Canada, dated January 21, 2008 (Exhibit A-34), stating that landings were prohibited at specified sites. His understanding regarding this letter was that Transport Canada was pushing for some of these sites to be developed as heliports, which could only be done at a "horrendous" cost. He was not aware of any accidents at any of the sites mentioned in the letter and Custom had consent from each relevant First Nation to land at any of the sites it used. Custom did, however, suspend flights to all of the sites mentioned in the letter. At one point, a Custom pilot refused to undertake a medevac flight (transporting critically ill patients) from St. Theresa Point partly because he was unsure where he could land. Custom was not prepared to rely on the provision in the CARs that allows for flights in life-threatening situations.

[126] Mr. Hawes had asked Mr. Campbell to arrange the meeting of April 9, 2008, which resulted in the issuance of the exemption of April 10, 2008 (Exhibit A-16).

[127] He referred to a letter dated March 27, 2009, from Canada Post to the Chief of the St. Theresa Point First Nation (Exhibit A-59). It explained that while Custom had the contract to ferry the mail to the Reserve during the spring break-up, it was not able to do so after May 1, 2009 when the exemption allowing it to land expired. James Hawes confirmed that Custom is still using the site. Although it is not a certified heliport, minor modifications were made so that it is now acceptable to Transport Canada.

[128] Under cross-examination, Mr. Hawes agreed that Custom's primary source of income is providing helicopter services in relation to activities on First Nation reserves. He works closely with his son, Brian Hawes, who is the company's operations manager and who would have spoken to Mr. Kipke about the purpose of the flight.

[129] Mr. Hawes thinks that on July 25, 2007, the baseball diamond was "off limits". Custom was landing at the new MTS site, which is outside the "organized territory". He was referred to the letters from Transport Canada regarding helicopter landing sites, dated March 1, 2007 (Exhibit A-27), April 24, 2007 (Exhibit A-28), July 26, 2007 (Exhibit A-30), and August 7, 2007 (Exhibit A-31), and agreed that none of them mentioned the baseball diamond. He was then referred to the January 21, 2008 letter (Exhibit A-34), which set out sites where helicopter landings were prohibited. He agreed that this was the first mention of the baseball diamond and believes that the reference to the hydro site was to the old MTS site. He agreed that since 2007, each First Nation reserve in the Island Lake area has had a useable landing site and that Custom has continued to fly into the Little Grand Rapids Indian Reserve without interruption. In answer to a question from me, he stated that he believes that Custom began to use the new MTS site around mid-June 2007.

[130] Under re-examination, he confirmed that Custom sought permission to use the old MTS site after the November 2006 incident, and that before that time Custom did not think it was needed. Custom did not seek permission to use the baseball diamond. Finally, he confirmed that Custom did not commission nor was it involved with the Consultant's Report on reserve helicopter landing sites (see Exhibit A-54).

C. Intervenors' Evidence

(1) Brian Eldon Robertson, Yukon Helicopters Ltd.

[131] At the outset, I reminded this representative, Brian Eldon Robertson, that I would be limiting his testimony to his assessment of built-up areas as a pilot, and I ruled that he could testify as an expert on them. He began by introducing four Google satellite maps of the Little Grand Rapids Reserve (Exhibits A-80 to A-83) and the Google help page regarding its maps (Exhibit A-84). Two of these maps focused on "RCMP point". He located the RCMP compound by comparing the buildings as shown on the sketch at Exhibit A-1 to the sketch in Exhibit M-2 and the Google map in Exhibit A-83 [at this point I commented on the compound being actually located on a bay rather than on the tip of a point as I had assumed from the name "RCMP point"]. He reviewed one of the photographs of the July 25, 2007 incident (Exhibit M-3), and pointed out that there are trees and bush between the landing area and the water, giving a clear path for a landing. He also reviewed the photographs taken by Constable Willcock's wife (Exhibit A-12), and pointed out that photographs can be delusionary so that, for instance, there was a tree shown in front of the helicopter at Exhibit M-3 that cannot be seen in Exhibit A-12. He did, however, on the basis of the photographs, disagree with Sergeant Raffle's statement that it was a windy day. The photographs do not show waves on the water or changes in the leaves caused by wind.

[132] He suggested that the most accurate views of the compound are those shown in the Google maps because they are how a pilot would see it when determining whether it is a built-up area. He said that it was clear from the photographs that the helicopter had landed because the rotor blades were level, thereby indicating that the power had been lowered, and so there was no lift.

[133] He referred to material available to a pilot to assist in making a determination of whether a proposed landing area is in a built-up area. He introduced Portions of the Winnipeg VFR (Visual Flight Rules) Navigation Chart (Exhibit A-85), and Extracts from From the Ground Up (Ottawa, Ontario: Aviation Publishers Co. Limited, 2010) (Exhibit A-86), which explains the symbols on the chart. Little Grand Rapids is identified by a small yellow circle at Exhibit A-85, which is used to identify a hamlet, but there is no identification of the Little Grand Rapids Indian Reserve. He explained that a pilot is required to carry the relevant VFR Navigation Chart and also NAV CANADA's Canada Flight Supplement ("CFS") on all flights. He introduced extracts from two versions of the CFS, the one effective from March 15, 2007, to May 10, 2007, and the other from August 27, 2009, to October 22, 2009, (Exhibit A-87), and he explained that the purpose of the CFS is to set out information concerning aerodromes that is more detailed than that found in air navigation charts. He referred to the legend found in the first section of the CFS that shows that a square indicates a building and that square hatchings indicate a built-up area. He referred to the entry for Little Grand Rapids in Section "B" of the CFS. It showed the airport runway and a cluster of squares indicating a hamlet and so it is consistent with the Chart. It did not show the Little Grand Rapids Indian Reserve. He referred to the entry for Drummondville, Quebec, as showing how square hatchings indicate a built-up area.

[134] He discussed the relationship between sections 602.13 and 602.14 of the CARs, the latter of which establishes minimum heights for flying. Essentially, section 602.14 establishes a 500-foot bubble around any obstacle and sets a minimum height of 1000 feet over a built-up area. This provision does not apply, however, when landing or taking off and in these situations section 602.13 must be considered. He also suggested that a city or town may consist of several built-up areas. He teaches his students to avoid flying over built-up areas and to obtain permission of the landholder before landing, unless it is Crown land. He has permission from the Chief of the Band of each reserve he serves allowing him to land on each one. He suggests that where landing is prohibited under section 602.13, it may be possible to get a waiver from Transport Canada. He also said that during the winter, it was important to land near a building (within 100 feet) so that a helicopter can be plugged in overnight.

[135] He again referred to one of the Google maps (Exhibit A-83) and said that if the landing took place on the shore, it was not within the built-up area. Furthermore, in calm weather it should be possible to fly to the landing site by Constable Catellier's house without flying over a structure. Since the flight would be over bush, it would not be "within" anything. He introduced another extract from From the Ground Up (Exhibit A-92), concerning the identification of towns from the air. The extract suggests that a town may be determined from its outline and from the pattern of roads and railways leading to it. There is, of course, no railway into the Little Grand Rapids Indian Reserve and the only road is a winter road established and maintained by the Province of Manitoba during the winter months. In fact, this road was closed on the morning that Mr. Robertson testified, although it was still useable at the user's risk.

[136] He discussed St. Theresa Point, part of the Island Lake Indian Reserve. He introduced a further excerpt from the CFS (Exhibit A-94), which indicates a built-up area by square hatching. He had always landed in an area called Mission Field but Transport Canada determined it was a built-up area because it included a backstop fence and could be used as a sports field. In addition, over the winter the RCMP had installed double-wide trailers connected to hydro wires that went across the field. Although Transport Canada issued a waiver allowing the field's use, Mr. Robertson did not want to land there because of the wires. These were removed as was the backstop and at that point, Transport Canada no longer considered it a built-up area.

[137] Mr. Robertson also discussed Policy Letter 145 (Exhibit A-18) and the guidance criteria (Exhibit A-34). He agreed that the Policy Letter sets out the situation as he understands it and said that the guidance criteria are in conflict with it. He referred to the heading "Helicopter landing site within 60m of a structure" and characterized it as a new requirement that would, for example, prohibit landing on a lakeshore within 60 metres of a house surrounded by trees. He also noted that it did not provide for landings within that distance with the permission of the owner, as had been stated in the email from Mr. Ireland to Mr. Campbell dated November 23, 2007 (Exhibit A-33). He concluded that although the policy was not unreasonable, there should have been consultation with the relevant parties before establishing it. Similarly the 120-metre prohibition in the guidance criteria constitutes a change to the overflight rules which are stated not to apply to landings and take-offs.

[138] He discussed the Notices to Airmen (NOTAMs), which contain instructions regarding airspace and aerodromes that supersede the information in the CFS. For example, a NOTAM may restrict the use of airspace around a forest fire. He is not aware of any NOTAMs issued with respect to landings at the Indian reserves under discussion.

[139] He introduced a page from the Natural Resources Canada website (Exhibit A-95) explaining its mapping information, which shows as an example, the town of Iqaluit outlined with a black line. Mr. Robertson said that he doubted that the whole area outlined was built-up but that there would be several such areas within the town.

[140] Under cross-examination, Mr. Robertson said that he has not operated at Little Grand Rapids for 10 or 12 years, although he was there while working on forest fires and flew by it every time he went to the Island Lake Indian Reserve. He has never been to the RCMP compound.

[141] He was questioned as to the extent he had been prepared for his testimony in view of his apparent familiarity with some of the material previously presented. He replied that he had been given a pile of material to review, but since he did not know what questions he would be asked, there was no real way to prepare. However, he did know, from the Ruling allowing him to intervene, that the questions would relate to landings and take-offs and made some preparations on that basis. He pretended that he was training students in ground school and determined what materials he would use in his explanation to them. He also reviewed the photographs in Exhibits M-3 and A-12 with Grand Chief Ronald Grant Evans in a meeting a week or two before his testimony.

[142] In discussing the VFR Navigation Chart (Exhibit A-85) and the CFS, he agreed that they were updated regularly with the date of the next update shown on the document. The update, however, does not always change the topographical and "cultural" information. The chart states that the topographical data is from June 1983. Even if "cultural data" includes human-made obstacles, structures, roads and buildings, he uses the maps, and his experience is that the built-up areas have not changed much since 1983. He agreed that the symbols for various communities probably have not been changed since 1983. Although the chart shows Stonewall, Manitoba as a hamlet, he believes it is a town and would overfly it as if it had that status. He understands that the information in the chart comes from various government departments such as Mapping Information in Natural Resources Canada, as shown in Exhibit A-95. He said that he was not able to spend much time reviewing the Natural Resources Canada website and does not know if it has any information relating to Little Grand Rapids, but he thinks that Iqaluit is only included as an example.

[143] He agreed that there could be built-up areas not shown on the chart, but said that an indication on the Chart raises a caution flag for a pilot. A pilot must make his own judgment as to the nature of an area and cannot simply rely on charts, nor can he rely on the information in the CFS as to what constitutes a built-up area. In discussing From the Ground Up, he said it is recommended as a guide by Transport Canada, but that it does not include the CARs because they change so often.

[144] He bases his assessment of the RCMP compound on the maps and photographs in evidence and agreed that he is not an expert in interpreting photographs. He agreed that it is his opinion that a pilot approaching from the water over bush to where the helicopter landed, then leaving the same way, would not be a violation of section 602.13 of the CARs.

[145] In terms of guidance material made available to him, he said that until 2008, he was not aware of any guidance material other than the CARs. He knew that he would need to get an exemption from Transport Canada for low flying or landing. He is aware of Policy Letter 145 (Exhibit A-18) and knows that were he to fall within a description in that document, he would need to apply for an exemption. When he was referred to the email sent from Mr. Ireland to Mr. Campbell (Exhibit A-33) outlining what was considered to be within a built-up area, he said that if such an email had been sent to him, he would have considered it to mean that there was going to be a change in the law. He acknowledged that the law cannot be changed by an email.

[146] With regard to the carriage of sling loads, he agreed that he has said he would be extra careful when carrying them. He would not change his opinion as to what constitutes a built-up area, but he might change his flight path so that he flies around an obstacle, such as a tower, rather than over it.

(2) Grand Chief Ronald Grant Evans, Assembly of Manitoba Chiefs

[147] Grand Chief Ronald Grant Evans stated that the Constitution of the AMC (Exhibit A-96) gives him the authority to speak for the 64 First Nations of Manitoba. He stated that the helicopter landing issue would impact First Nation communities across Manitoba and the rest of Canada.

[148] In deeming the Little Grand Rapids Indian Reserve a town, Transport Canada did not fulfill its responsibility to consult and accommodate in making a decision that affected First Nations communities. This responsibility arose from the negative and devastating impact of decisions on First Nations lands and communities and has been recognized by the Courts. A decision of Transport Canada to characterize Little Grand Rapids Indian Reserve as a town would have a negative effect on the community, especially during the periods of freeze-up and break-up when its inhabitants must rely on helicopter transport to leave the Reserve. He also noted that if the Reserve were a town, it would imply certain provincial responsibilities towards it as a town.

[149] When he was made aware of the letter of January 21, 2008 (Exhibit A-34), he decided that, rather than take an aggressive stance, it was better to do what was necessary in order to ensure that the health of the First Nations communities was not put at risk. While he noted that there had been no consultation between the AMC and Transport Canada before sending the letter, he tried to meet the regulatory requirements by asking for an exemption and for funding to hire a professional to determine how to go about meeting these requirements. After the exemption was granted in April 2008 (Exhibit A-16), an expert was hired and provided a report (Exhibit A-54), but he did not give any indication of the associated costs. As far as he knows, there was no offer of help or funding from either Transport Canada or Health Canada. While these departments may have worked directly with the affected bands or his representatives, he is not aware of any such contacts.

[150] He discussed the AMC Briefing Note (Exhibit A-60) prepared after the meeting of April 9, 2008. This note stated that five sites had been reclassified as "private". He had never heard of that designation and found it confusing in light of Transport Canada's earlier attitude. In April 2008, there was no indication that some sites may eventually be classified as private. He believes that Transport Canada did not observe the requirements of the "honour of the Crown" throughout the process. There were no complaints by First Nations relating to helicopter landings in 2006, 2007 or early 2008.

[151] He briefly discussed the landing areas at St. Theresa Point and Wasagamack Reserves. He was not sure what was done at St. Theresa Point but he has landed there and did not see any difference. He has not been to the Harper's Island site at Wasagamack but is familiar with it from photographs. He is not aware that Transport Canada has done anything to assist in certifying the site, but he knows that it can no longer be used as a place for helicopters to land.

[152] In describing the community, Grand Chief Evans said that the Little Grand Rapids First Nation does not have many amenities. He cannot say that all the houses have running water and sewers. There is a store, but it is not a community that would be classified as a town. There is access to it in winter over winter roads and it is during this period that residents stock up on essentials. Once the winter roads disappear, everything must be flown in at a much higher cost. The majority of band residents live in poverty in substandard housing and crowded conditions. There are many health problems and a high number of children in care. There is no employment available other than for the band, the school, the nursing station, the RCMP and, on the north side of the water, the store and the airport. Transport Canada did not give any notice to the AMC of its intention to ask the Tribunal to declare the community a town.

[153] He testified that Indian reserves are not created under but are expressly stated not to be included in the provisions of the Manitoba Municipal Act and the Manitoba Northern Affairs Act. They are created by the Minister of INAC through Order in Council. Little Grand Rapids Indian Reserve was created as Reserve 14 by Treaty No. 5. Lands on the Reserve are held in trust for the Indians who are members of a band occupying a particular territory.

[154] He explained that the Chief and Band Council have authority derived from the Indian Act, R.S.C., 1985, c. I-5, to make resolutions allowing helicopters to land on First Nations' land. A Band Council resolution is required whenever a band member or an outsider wishes to start a business on a reserve. If a Band wants to authorize the establishment of a heliport on a reserve, it needs to follow the proper process to set aside the land. First, the community needs to be in agreement to set aside a specific area. Next, a request is forwarded to the Minister of INAC who starts the process by holding a referendum, which leads to funding. If the Minister of Transport wishes to establish and operate a heliport on an Indian reserve, he needs to cooperate with the Minister of INAC. The Minister INAC gives notice to the band followed by meetings and consultations to see if the band approves. If such approval is given, the Minister of INAC obtains an Order in Council authorizing a Treaty Land Entitlement Agreement under the Indian Act. This procedure was not followed in relation to the helicopter landing sites. A similar procedure should be followed if the band wishes to establish the heliport, except that the Minister of INAC provides the necessary resources.

[155] In the case of Little Grand Rapids Indian Reserve, the procedure should have been the following: instead of writing directly to Chief Raymond Keeper of Little Grand Rapids on July 6, 2007 (Exhibit A-29), Transport officials should have asked INAC to contact Chief Keeper to raise the issue of heliports. If the band had had legal advice, it would have known that this is the proper procedure, but he felt it was unlikely since most bands do not have the resources to hire lawyers. Had the letter come from INAC, it would have given rise to the fiduciary duty to protect First Nations' interests and ensure that they have adequate resources to engage in anything affecting their well-being.

[156] Grand Chief Evans said that he perceived as a threat the sentence in the letter to Chief Keeper that Transport Canada did not "wish to limit the [helicopter] Services". He also said that in spite of the expressed wish in the fax from Transport Canada to Lynn Turcotte of INAC, dated August 13, 2007 (Exhibit A-30), to make as many parties as possible aware of the unsafe helicopter flying conditions, there was no consultation with the AMC, nor was it made aware of any unsafe flying conditions.

[157] He referred to the consultant's report on helicopter landing sites on certain reserves (Exhibit A-54). He could not remember the source of funding for the consultant, but one was needed because the First Nations did not have the expertise. After the report was received, there was no funding made available by either INAC or Transport Canada. He doubts that any of the reserves have constructed heliports since they do not have the resources to build or maintain them. He is not aware of any safety issues that have arisen with regard to the use of the new sites.

[158] The fiduciary duty to First Nations goes to the honour of the Crown arising from the Royal Proclamation of 1763 (Exhibit A-102) and the treaties. The rights of First Nations peoples are recognized in section 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 ("Constitution Act, 1982"), and by the United Nations Declaration for the Rights of Indigenous Peoples. The honour of the Crown requires that it ensure that no one take advantage of First Nations and that they have the resources to ensure that they are properly represented, whether legally or otherwise.

[159] First Nations' rights include the right to have essentials and the right to land. Procedures have been established in order to "set aside" land that requires an Order in Council, as described earlier. To the extent that lands needed to be set aside to establish a heliport, there was a breach of the fiduciary duty since there was a failure by Transport Canada to consult and accommodate, and there was no involvement of INAC. The letters indicating that services were taken away were also a breach because decisions were being taken that would affect the health and safety of reserve residents, without speaking to the leadership or putting plans in place to remedy the situation.

[160] In the case of Little Grand Rapids and the other affected reserves, a decision was made, perhaps wrongly, to try and accommodate Transport Canada's concerns in order to avoid a possible evacuation. He does not think that Transport Canada either understood or evaluated the situation correctly.

[161] It should be noted that after the examination-in-chief ended on March 31, 2011, the Hearing adjourned then resumed on September 26, 2011. In the interim, there was a change in leadership at the AMC with Grand Chief Evans retiring to become Chief of the Norway House Cree Nation. At the same time, the AMC appointed new counsel who, at the beginning of the day, indicated their intention to withdraw the AMC intervention. Grand Chief Evans (hereafter referred to as ‘Chief Evans'), however, continued to speak on the AMC's behalf during cross-examination.

[162] Under cross-examination, Chief Evans stated that he was now Chief of the Norway House Band. He has no legal training and the opinions he expresses are personal and reflect his experiences. He was referred to the letters from Transport Canada to Custom (Exhibit A-28) and to Chief Keeper (Exhibits A-29 and A-31). He had not seen any of these letters and was not aware of any responses to them.

[163] While at this point he could not remember seeing the January 21, 2008 letter prohibiting the use of certain landing sites (Exhibit A-34), he recalled that it raised concerns over the safety of reserve residents and he assigned an advisor to deal with the issue. The AMC became involved because leadership was needed.

[164] He could not recall if he was told that there were alternate sites either available or needing only minor work at the affected reserves. He believes that the helicopter services were never suspended.

[165] He agreed that the cost of the consultant was shared by INAC and Health Canada, and that Transport Canada provided an official to work with the consultant. The AMC coordinated the effort and received the consultant's report on September 29, 2008 (Exhibit M-16); the AMC then sent copies of the consultant's report to the Chiefs of the affected reserves on October 17, 2008 (Exhibit A-54) but he could not recall whether there was any consultation between those dates.

[166] Chief Evans agreed that it is his position that Transport Canada should be limited in enforcing its regulations on reserve lands where those regulations affect the lands. While he agrees that Transport Canada has the authority to enforce its regulations all across Canada, it must also take into account First Nations sovereignty. If new regulations cause financial hardship, they must be agreed to by the affected First Nation. This is part of the fiduciary duty toward First Nations and it was not carried out in this matter. In matters of safety, the community should make decisions, which should be respected.

[167] He agreed that the Transport Canada position was that if the named sites continued to be used, the regulatory requirements would need to be met. He also pointed out that the letters stated that if this was not done, enforcement action might be taken.

[168] When asked if a band council resolution could restrict a federal department's powers, he said his position is that it would be able to do so if the band had a constitution. As Grand Chief, he had a limited role in establishing policy; rather he worked with Indian bands to get a band council resolution in place to resolve particular issues. He could not say, however, whether it would be necessary for the landing site to go through the process of setting aside land, as mentioned above.

[169] When asked if he agreed that "town" might have different meanings in different contexts, he said that if a community was considered a town in one context that had detrimental effects, it should also be considered a town where that characterization would be positive. If Little Grand Rapids is to be considered a town, it should be given the same advantages as comparable towns in Manitoba such as having, for example, sewers and water systems.

[170] Under re-examination, Chief Evans confirmed that reserve lands are considered private lands for First Nations' use. They are managed by a chief and council on behalf of a band. A non-member who enters the land without permission is a trespasser and may be asked to leave by the chief and council.

[171] It is to be further noted that at the end of Chief Evans' testimony, the AMC's new counsel asked permission to withdraw. I agreed that he could do so but reminded him that the AMC could therefore take no further part in the proceedings.

V. ARGUMENTS

A. Minister

[172] The Minister's representative argued that there were admissions that Mr. Kipke was the pilot of the helicopter that landed at the RCMP compound, which in turn justifies an inference of fact. Most notable was the Applicant's statement to Inspector Gagnon after he had been warned that such statements might be used in evidence against him (the "warned statement").

[173] She relied on Canada (Minister of Transport) v. Schroeder, 1998, CAT File No. C-1584-33 (Review), and Canada (Minister of Transport) v. Vincent, 2003, CAT File No. Q-2531-33 as having precedential value in determining whether the area of the landing was in a "built-up area". Although Schroeder related to a contravention of subsection 602.14(2) of the CARs, it applied that provision to low flying over a community in the Red Sucker Lake Indian Reserve. It also discussed the meaning of a built-up area, referring to R. v. Stoesz, 1983, Man. Prov. Ct., a decision of the Manitoba Provincial Court in a prosecution under paragraph 534(2)(a) of the Air Regulations, C.R.C. 1978, c.2, where it was held that a built-up area referred to man-made structures including dwelling houses, schools, elevators, service stations, and such. She argued that Vincent related to a community similar to Little Grand Rapids in that it was a cluster of buildings and structures, parts of which were surrounded by trees and bush.

[174] From a safety point of view, the helicopter landed close to occupied buildings, including a dwelling, on a windy day. The evidence showed that at least two people were frightened and took refuge behind a parked vehicle.

[175] With regard to "town", the Minister's representative said that there were no cases dealing with the definition of "town" on a First Nations reserve. She argued, however, that the rules of interpretation set out in the Interpretation Act, R.S.C., 1985, c. I-21, should be applied to the interpretation of regulations in the same way as to statutes. Section 12 of the Interpretation Act provides that enactments are deemed to be remedial and should be given a broad and purposive interpretation. On that basis, it should be recognized that the purpose of the CARs is safety and to exclude First Nations from consideration leads to a gap and absurdity that the legislator never intended, and which is not in accordance with a broad and purposive approach.

[176] She argued that the legislative intent of the CARs in using the word "town" was to refer to a community of a certain population size with associated structures and infrastructures where there would be greater concerns relating to the safety of take-offs and landings that justified imposing requirements of where and how they could be carried out. She referred to an earlier version of a regulation where the wording referred to "city, town or other settlement" and argued that the removal of the phrase "other settlement" did not alter the meaning of section 602.13 of the CARs. She referred to subsection 45(2) of the Interpretation Act as authority for the proposition that the meaning of a provision is not altered merely because it is amended.

[177] She argued that the determination of whether a community is a town should be made on a case-by-case basis and that the word should be given a broad interpretation. Provincial legislation should not be relied on in interpreting "town" since the word is used differently in different provinces and territories. To apply the provincial meaning to the word in federal legislation would lead to inconsistent application across the country.

[178] In discussing the jurisprudence on what constitutes a town, the Minister's representative referred to the Vincent matter and also to (Canada) Minister of Transport v. Delco Aviation Limited, 2000, CAT File No O-1918-41. While she acknowledged that both these cases related to suburban provincially recognized municipalities, she suggested that they are useful as guides in considering the amenities, infrastructure and governance that are characteristic of towns. In Delco, the Tribunal mentions relevant infrastructure as being houses, streets, bridges, and marinas. In Little Grand Rapids, the evidence is that there are 200 to 300 houses and 1 600 to 2 000 residents (as per Sergeant Raffle's testimony). There are streets and the houses are arranged in named neighbourhoods; there is an airport with regularly scheduled flights; water and sewage treatment facilities; a water truck providing treated water to residents; a radio station; an industrial area; Manitoba Child and Family Services; a provincial firefighting facility; a school day care; group homes; a nursing station; community hall; baseball diamond; outdoor rink; and several stores, one including a post office. Although it is not a provincial municipality, it has a system of governance through a chief and five to seven councillors who make and implement resolutions, and who administer an annual budget. On this basis, the community satisfies the criteria for consideration as a town.

[179] Finally, the Minister's representative argued that there was no basis for a defence of due diligence. The Applicant stated in his warned statement that he was taking landing instructions from his passenger. There was no evidence that the RCMP had given permission to land in that particular area of the compound. The Applicant's representative cannot, in the absence of Mr. Kipke's evidence to that effect, rely on a suggestion that he was confused because of the political situation surrounding the landing site on the Reserve.

B. Applicant

[180] The Applicant's representative began her argument by referring to two of the cases mentioned by the Minister. First, she pointed out that in Vincent both the Review Member and Appeal Panel assumed that paragraph 534(2)(a) of the Air Regulations was the predecessor of subsection 602.13(1) of the CARs when, in fact, it was replaced by subsection 602.14(2) (the overflight rule) which establishes minimum altitudes for flying over a built-up area. The predecessor of subsection 602.13(1) of the CARs is subsection 534(7) of the Air Regulations. When the CARs replaced the Air Regulations in 1996, subsection 602.13(1) of the CARs continued to refer to a built-up area of a city or town as had been done in subsection 534(7) of the Air Regulations. There was a substantial change to subsection 602.14(2) of the CARs. Paragraph 534(2)(a) of the Air Regulations referred to the "built-up area of a city, town or other settlement" whereas subsection 602.14(2) of the CARs refers only to a "built-up area".

[181] Schroeder was a default judgment and related to overflights. While the determination refers to the settlement of Red Sucker Lake, it cannot be used as a basis for an argument that a settlement is akin to a city or town.

[182] The general thrust of the Applicant's oral argument was to attack the "shoddy" investigation of the matter of this Hearing and to allege that the Minister had not met the required burden of proof with regard to any of the elements of the offence.

[183] She argued that there was no conclusive proof of the location where the helicopter landed. The only map provided by the Minister was an aerial map of the area (Exhibit M-1) first provided by the Applicant during the evidence relating to the suitability of the proposed Intervenors. The Minister relied on a hand-drawn diagram (Exhibit M-2) made by Constable Willcock well after he had moved from the Reserve with additions made at the Hearing, and which was admittedly not to scale. The additions made to this diagram by Sergeant Raffle (Exhibit M-4) were not useful and in some cases contradicted those of Constable Willcock. The photograph taken of a helicopter (Exhibit M-3) was disclosed in a print version, not electronically. The Applicant's representative also laid some stress on a comment that I made late in the evidence that I had been assuming that the RCMP compound was at the end of "RCMP Point" when, in fact, it is on a bay on the base of the point. Additionally, the NAMP referred to a landing at Little Grand Rapids, Manitoba not Little Grand Rapids Indian Reserve.

[184] The Applicant's representative also suggested that it was not clear what helicopter landed on what date. The email sent by Sergeant Raffle to Inspector Gagnon complaining about an incident is headed "Provincial Helicopter Incident – 2007-0725" (Exhibit M-5) and that same heading was repeated when the email was forwarded to Inspector Gagnon's supervisor. The Aviation Enforcement Case Report (Exhibit M-13) gives the date of the incident as July 24, 2007 as does the description under the heading "Elements and Sanction Schedules" (Exhibit M-13). The Report is based on a complaint made on July 27, 2007. Clearly, it cannot refer to an incident that took place on July 25, 2007, which was the subject of a complaint on July 26, 2007. None of the photographs offered in evidence are dated and none show the registration marks of the helicopter.

[185] She also argued that the landing was not in a built-up area. She contended that Inspector Gagnon had reached that conclusion on the basis of the "Guidance criteria for a Heliport within the built-up area of a City or Town" (Exhibit A-34) because in the Aviation Enforcement Case Report he stated that "Little Grand Rapids is deemed to be a built-up area of a town". These criteria are attached to a letter from Transport Canada to Provincial (Exhibit A-35) and they suggest that determining whether an area is "within" is based upon its distance from a structure or public-use area. She maintained that these criteria are not consistent with either jurisprudence or Policy Letter 145 (Exhibit A-18) and should not have been applied in this matter. Transport Canada has stated that the guidance criteria are only a draft and not available to the public. To use the criteria in determining that there has been a contravention, therefore, is a breach of the rule of law since a person is entitled to know the law applied to his actions.

[186] She referred to jurisprudence that held that a built-up area should be recognizable from the air. This principle was first established in R. v. Crocker, 1977, 33 N.S.R. (2d) 177, and has been cited with approval by the Tribunal, notably by the Appeal Panel in Canada (Minister of Transport) v. Foxair Heliservice Inc., 2002, CAT File No. Q-2427-37 (appeal).

[187] The Applicant's representative referred to Policy Letter 145 (Exhibit A-18) as a document available to the public that explains what is meant by "a built-up area" and by "within". She notes that it states that "within" would mean that "a landing site would have to be surrounded on all four sides or at least to the point that a landing aircraft would overfly a structure at some point, or fly close enough to create a hazard." There was no evidence that the helicopter approached or took off over any structure and, in light of Constable Willcock's statement that he felt safe, no hazard was created.

[188] She also referred to an email from Mr. Ireland of Transport Canada to Mr. Campbell, dated November 23, 2007 (Exhibit A-33), in which there was an attempt to explain the meaning given to "built-up area" and "within". While this explanation closely parallels the Guidance criteria (Exhibit A-34), it also makes an exception from the limits for landings that are made by the owner of the structure or with the owner's permission. She argued that in this case permission was given to Mr. Roberts for Custom to land at the RCMP compound. While Sergeant Raffle might have intended to rescind that permission, he did not communicate that intention to Custom, but only to the MTS workers.

[189] The Applicant's representative also argued that the landing came within the exception in subparagraph 602.13(2)(c)(i) of the CARs: "for the purpose of a police operation that is conducted in the service of a police authority." By agreeing that the MTS truck could be parked at the RCMP compound because the new MTS site was not yet secure, the RCMP had agreed to safeguard the truck, and the flights ferrying the MTS workers who used the truck would be for the purpose of a police operation. The condition set out in paragraph 602.13(2)(b) of the CARs, that the flight be conducted without creating a hazard to persons or property on the surface, was confirmed by Constable Willcock's statement that he felt safe.

[190] The Applicant's representative argued that the Little Grand Rapids Indian Reserve is not a town. Section 92.8 of the Constitution Act gives the Provinces exclusive power over "Municipal Institutions in the Province" and both the Municipal Act and Northern Affairs Act, which govern the establishment of municipalities in Manitoba, specifically exclude Indian reserves. Policy Letter 145 (Exhibit A-18) states that the "terms ‘city' or ‘town' are taken to mean a municipal entity incorporated as such". The amenities referred to by the Minister's representative are common to Indian reserves and the governance of Chief and Council is established under the federal Indian Act. Several of the amenities mentioned by the Minister's representative, however, are not even on the Reserve.

[191] Reserve lands are expressly provided for the benefit of Indian bands and are sovereign to that band. They are not open to the public and non-band members who enter them without permission are trespassers. Quebec (Attorney-General) v. Canadian Owners and Pilots Association, 2010 SCC 39, stands for the proposition that, outside of the built-up area of a city or town, people may construct an aerodrome without permission. To deem the Little Grand Rapids Indian Reserve a town is an infringement of First Nations sovereignty and violates the treaty rights guaranteed by the Constitution. While the CARs, including the overflight rules, are enforceable in relation to matters in the air above reserves, they are not enforceable on the ground of those reserves.

[192] The Applicant's representative argued that if the Minister wishes to rely on the "warned statement" of Mr. Kipke, that statement must be consistent with the evidence given at the Hearing. What was said when Inspector Gagnon took the statement must be consistent with the evidence at the Hearing. Inspector Gagnon misled Mr. Kipke on two matters: when asking if he was aware of the work plan; and if he was aware that there was a "kid" there. In fact, there was no work plan since it had expired and the "kid" was an infant inside the house. She argued that this goes to Inspector Gagnon's credibility and she referred to an earlier matter, Canada (Minister of Transport) v. Potter, 1994, CAT File No. C-0353-33 (Review), where Inspector Gagnon's evidence was found to be not credible because his statements at the hearing were different from those made earlier in a taped conversation. She also argued that Mr. Kipke's statement was given in the context of an investigation into a different provision of the CARs, section 602.01. She criticized the inclusion in Inspector Gagnon's account of the statement set out in EMS that "it is inappropriate for PAX [passengers] to say where to land." She suggested that Inspector Gagnon's testimony that he told Mr. Kipke that he had a different opinion as to whether there had been an offence was an indication that he had already made up his mind and would not be influenced by what Mr. Kipke said. She also argued that in spite of his denial, he must have been using the guidance criteria (Exhibit A-34) in deciding that there had been a contravention. It was significant that the Aviation Enforcement Case Report (Exhibit M-13) stated that Little Grand Rapids "is deemed to be a built-up area of a city or town" and it was clear that Inspector Gagnon must have been aware of the Guidance criteria in view of the explanation given in Mr. Ireland's email to Mr. Campbell, dated November 23, 2007 (Exhibit A-33).

[193] She argued that the guidance criteria were being used to evaluate established helicopter landing sites at a number of Indian reserves before and after the landing at the RCMP compound took place. She argued that the use of these criteria was improper both as an infringement of First Nations rights and of the rule of law because they were not made available to the public. She alleged that they were used so that any landing at any site that met the distances from a structure set out in the four "within" columns was considered to be in breach of section 602.13 of the CARs.

[194] The Applicant's representative cited Canada (Minister of Transport) v. Sunwest Aviation Ltd., 2003 CAT File No. W-2628-41 (Review) where there was conflicting evidence of the track followed by the aircraft and an admission that there can be anomalies and errors in radar data. On that basis, the Tribunal Member found that the Minister had not proven his case on a balance of probabilities. The Applicant's representative argued that there were enough errors and uncertainties in the Minister's evidence to warrant a similar conclusion in the present matter.

[195] She referred to Paquin v. Canada (Minister of Transport), 2005 TATC File No. A-3021-33 (Review), as a case that was well presented with detailed evidence. It was determined that there was a contravention of section 602.14 of the CARs (overflights) and it was observed that the area, although not a city or a town, was densely populated. She noted that in Delco, it was found that Chippewa was part of the city of Niagara Falls and that in Vincent, the Tribunal relied on an area's provincial classification as a municipality under Quebec law in its determination that the area came within a broad interpretation of "city or town". She suggested that apart from legal definitions of city and town, guidance can be found in the charts (Exhibit A-34) and texts such as From the Ground Up that include explanations of how to determine if there is a town.

[196] The Applicant's representative argued that a defence of due diligence or officially induced error would apply should I find that Mr. Kipke has indeed contravened subsection 602.13(1) of the CARs. There was a great deal of confusion concerning helicopter landing sites at the time and the RCMP officials were not aware that Custom was not authorized to land at the baseball diamond as instructed by Sergeant Raffle.

[197] In her written submissions concerning the constitutional issues raised in her Motion of December 2, 2010, the Applicant's representative repeated many of the matters she had argued orally, such as the exclusive power, under section 92 of the Constitution Act, 1867, of the province to regulate municipalities, and the infringement of First Nation rights in determining that reserves are towns. She argued that subsection 602.13(1) of the CARs should be "read down" so that the provision does not infringe on provincial or First Nation rights. She repeated that Mr. Kipke was entitled to be governed by the rule of law and the application of the guidance criteria (Exhibit A-34) to the landing complained of was a breach of his rights.

[198] The Applicant's written representations challenged the constitutional validity of sections 7.7, 7.8, subsection 7.9(2), and subsections 7.91(1) and (2), of the Aeronautics Act, which set out the procedures governing contraventions of "designated provisions" under that Act. Her position is that subsection 7.7(1) confers a discretionary power on the Minister (or his delegate) to assess a monetary penalty where he has reasonable grounds to believe a designated provision, which subsection 7.6(2) declares is an offence, has been contravened. The section makes no provision for a hearing and makes no presumption of innocence. She contends that the issuance of the NAMP under this subsection amounted to a conviction for an offence and a penalty determined subjectively by bureaucrats with no oversight and nothing external to guide them.

[199] The Applicant further argues that this is an infringement of the Applicant's rights established under the Canadian Bill of Rights, SC 1960, c 44. She referred specifically to rights set out in paragraph 1(b), "equality before the law and the protection of the law" and paragraph 2(e), "the right to a fair hearing in accordance with the principles of fundamental justice" and argued that the investigation carried out by Inspector Gagnon and the decision made by him and his superiors was not in accordance with these principles. She said the officials involved constituted "other authority" (her words) within the meaning of paragraph 2(d) and cannot compel a person to "give evidence if he is denied counsel, protection against self-incrimination or other constitutional safeguards." On this basis, investigators should not have the power to obtain "warned statements".

[200] She refers to the Order of the Federal Court in Kevin Melanson v. Minister of Transport, (16 January 2003), Ottawa T-1664-00 (FCTD), a case resulting from the Tribunal referring a matter back to the Minister for reconsideration, in which Martineau J. set aside the reconsideration that had been made by the Minister without giving the applicant an opportunity to be heard, and ordered that there be a new reconsideration determined in accordance with the law and natural justice.

[201] The Applicant's representative also alleges that subsection 7.7(1) of the Aeronautics Act is contrary to the Charter. She argued that the following rights were violated in the action against Mr. Kipke:

- section 7, "security of his person", by the Letter of Investigation (Exhibit M-18) stating that Transport Canada was "investigating you" (emphasis in submission);

- section 11(a) as he was not informed of the specific offence until the issuance of the NAMP;

- section 11(c) as the "warned statement" made in connection with one alleged offence was used in relation to a different offence, offending the right against self-incrimination in respect of an offence;

- and section 11(d), the right to be "presumed innocent until proven guilty according to law in a fair and public hearing", was breached by a decision under subsection 7.7(1) of the Aeronautics Act by issuing a notice of assessment of monetary penalty alleging that he had contravened subsection 602.13(1) of the CARS.

[202] She submitted that pursuant to section 24 of the Charter, the "warned statement" should be excluded as having violated Mr. Kipke's rights since two misleading statements were used in obtaining it. She also submitted that the violations of rights cannot be justified under section 1 of the Charter since they go beyond what is reasonable in a free and democratic society.

C. Minister in Reply

[203] In her reply, the Minister's representative argued that the Applicant had mischaracterized some of the evidence and reiterated that the elements of the offence have been proven. Two RCMP witnesses testified that they observed the landing on July 25, 2007, and they marked the area on a satellite map (Exhibit M-1) and on a diagram prepared by Constable Willcock (Exhibit M-2), and added to by Sergeant Raffle (Exhibit M-4). They also identified a photograph of the incident (Exhibit M-3) as one taken at the time by another RCMP officer at Sergeant Raffle's request. Sergeant Raffle's email described the landing and established the date. The Applicant's references to the subject line are disingenuous in light of this testimony and the matter was not put to Sergeant Raffle during cross-examination.

[204] Mr. Kipke admitted in a warned statement that he was the PIC of the helicopter that landed at the RCMP compound. Both the pilot and helicopter were named in the conversation between Sergeant Raffle and Brian Hawes.

[205] The helicopter landed in a built-up area as was illustrated by the RCMP officers' testimonies, the marked satellite and hand-drawn maps, and by the photograph of the incident (Exhibit M-3). There is no reason to doubt Sergeant Raffle's testimony that he did not feel safe since he was not cross-examined on that point. He observed the landing from a closer and different perspective than Constable Willcock did.

[206] The Minister's representative took the position that Little Grand Rapids is composed of enough structures and has enough inhabitants to be considered a town, consequently triggering the application of subsection 602.13(1) of the CARs. It has a governance structure similar to that of municipalities under the provincial municipal law and taking this into account together with the population, infrastructure and amenities, it comes within the general character of a town in terms of the modern rule of statutory interpretation formulated by Driedger (Ruth Sullivan, Driedger on the Construction of Statutes, 3d, Butterworths) and often cited by courts, most recently in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."

[207] She argued that the communications that concern landing sites at various Indian reserves referred to by the Applicant are dated after the date of the incident and should be ignored because they were sent from a different branch of Transport Canada in relation to different sites. She noted, however, that these communications indicate that Transport Canada was attempting to engage the helicopter operators and bands involved in a consultative process.

[208] In addressing the Applicant's arguments concerning the investigation, she argued that assessments regarding Inspector Gagnon's credibility should be based on his testimony and answers during cross-examination and not on suggestions made in argument that were not raised with him.

[209] The Minister's representative stated that there was no available defence of officially induced error. For this defence, the Applicant relied on the confusion at the time surrounding appropriate landing sites, yet there is no evidence of error by either the RCMP or Transport Canada in communicating with the Applicant, nor did the landing take place with the consent of the RCMP or come within the exception in subparagraph 602.13(2)(c)(i) of the CARs, which excepts operations "for the purpose of a police operation that is conducted in the service of a police authority." Such a consent to land is not supported by Sergeant Raffle's evidence because he did not consent to landings in Constable Catellier's yard; he was uncomfortable with landings on the shore; and he had instructed the MTS workers that there should be no landings at the compound. Mr. Roberts' evidence was that he landed on the shore.

[210] Permission to park the MTS truck in the RCMP compound does not amount to a police operation. This theory was not put to Sergeant Raffle during cross-examination and there is no evidence that the Applicant thought he was acting in the service of a police authority.

[211] A defence of due diligence must also fail. There were alternative landing sites available, including the new MTS site, as well as the baseball diamond which was being used and was not a prohibited site at the time. The Applicant did not inform himself of these alternatives.

[212] The Minister's representative addressed the constitutional issues raised by the Applicant. The Minister's representative argued that in alleging a breach of treaty rights, the Applicant failed to specify which aboriginal or treaty right had been breached, either by classifying a settlement on an Indian reserve as a town or by enforcing the CARs on a reserve. She referred to R. v. Van der Peet, 1996 2 S.C.R. 507, as an authority for the proposition that an aboriginal right that is claimed must be precisely identified. The Applicant also referred to a duty to consult and accommodate, but did not discuss the origin of the duty or analyze the extent of the duty. A bald assertion of rights or duties without a precise identification of the right or extent of the duty does not establish a defence of a constitutional infringement of rights.

[213] In any event, there is no Aboriginal right to transportation. Van der Peet explains that a right arises from an element integral to a distinct culture grounded in pre-contact practice or custom. In R. v. Sappier, 2006 SCC 54, it was stated that there cannot be a claim to a right that is too broad. There is no evidence that supports a pre-existing right to transportation over the water during freeze-up and break-up. There was no identification of any treaty right that is violated by the enforcement of the Aeronautics Act on Indian reserves. There is nothing in the Indian Act that prevents a federal statute from applying on reserves. Chief Evans acknowledged that the Criminal Code applies. The express application of provincial law in section 88 of the Indian Act is an indication that Parliament intended all laws of general application to apply on reserves. The powers of governance given to band councils by sections 81 to 86 of the Indian Act are similar to those given to municipalities under provincial legislation.

[214] The Minister's representative argued that even if the enforcement of subsection 602.13(1) of the CARs breached a treaty or aboriginal right, it would only render the law invalid against a member of a First Nation. There was no evidence that the Applicant was a member of the Little Grand Rapids First Nation, and the landing took place on land that had been "set aside" and leased to the RCMP.

[215] She stated that there was no issue related to the division of powers under the Constitution Act. The Tribunal does not need to decide if Little Grand Rapids is a town within the meaning of provincial legislation, but rather if it comes within the meaning of the word used in the CARs for the purposes of the CARs.

[216] She referred to the Applicant's contention that the Minister relied on the Guidance criteria (Exhibit A-34) in deciding that there had been a contravention as contrary to the rule of law. She argued that this position is not supported by the evidence and was specifically denied by Inspector Gagnon who also testified that the determination of "built-up area" was made on a case-by-case basis. Furthermore, this matter was initiated by a complaint from Sergeant Raffle and the landing site was not part of the assessment process undertaken by another Branch of Transport Canada, nor was it mentioned in any of the correspondence relating to these assessments.

[217] The Minister's representative argued that the "warned statement" was admissible and did not violate the rule against self-incrimination in section 7.91 of the Aeronautics Act. The Applicant was warned both orally and in writing that he was being investigated and that any statement he made could be used against him. She cited R. v. Singh, 2007 SCC 48, where the Supreme Court held that the right to silence does not mean that investigators cannot ask questions; and that the warning or caution is important in determining whether a statement is voluntary. The Tribunal has in the past relied on warned statements. In Comeau v. Canada (Minister of Transport), 1998, CAT File No. W-1671-02, it was found that an unsigned statement given after a warning was admissible and came within the exception to the hearsay rule as an admission against interest. The fact that the Letter of Investigation (Exhibit M-8) referred to a more serious offence has no bearing on its admissibility since the subject of the investigation, the landing, was made clear.

[218] The Minister's representative submitted that the protections set out in section 11 of the Charter do not apply since they only apply to criminal and penal matters. In R. v. Wigglesworth, 1987 2 S.C.R. 541, the Supreme Court held that the section should be limited to "criminal or quasi-criminal proceedings and proceedings giving rise to penal consequences". The meaning of "penal consequences" was elaborated in Martineau v. Canada (Minister of National Revenue), 2004 3 S.C.R. 737, where three factors were set out to determine whether proceedings are penal in nature:

  • the objectives of the section underlying the proceedings;
  • the purpose of the sanction; and
  • the process leading to the imposition of the sanction.

[219] In that matter, the appellant, Normand Martineau, was issued a notice demanding that he pay duties assessed against the deemed value of goods he had attempted to export by making false statements, and the Court decided that the sanction imposed was not penal in nature, although it could have a punitive and deterrent effect. The Court also found that the process followed in the matter was not indicative of the procedure being criminal. The person who received the notice had a period to seek review of the decision by the Minister and could make representations to the Minister in writing and, eventually, seek a decision from the Federal Court. The process had little in common with criminal proceedings, did not result in a criminal record and, at worst, could have resulted in the imposition of a fine. The Minister's representative argued that the situation in Martineau is similar to that of the Applicant, and that section 11 of the Charter should not apply.

VI. ANALYSIS

[220] During the Hearing, both parties acknowledged that it has generally been found by the courts that, where a decision on a matter is capable of being made on a non-constitutional ground, a constitutional ground or both, the course of judicial restraint is to decide on the non-constitutional ground(s) so that the dispute between the litigants is resolved and the impact of making a constitutional decision on the powers of the legislative or executive Branches of government is avoided (Peter W. Hogg, Constitutional Law of Canada, 5th ed., 2nd vol. [Scarborough, Ontario: Carswell, 2007 at 792]). Consequently, in this analysis, I will first address the matter without considering the constitutional issues raised by the Applicant and, if necessary, discuss them as they would affect a finding that the contravention has been proven.

[221] Throughout the Hearing, there were a number of matters that were generally agreed on. Witnesses for both the Minister and the Applicant agreed that helicopter services are important to Little Grand Rapids Indian Reserve, especially during periods of freeze-up and break-up when there is no other safe method of getting over the water isolating the Reserve. Both parties praised the Applicant, Mr. Kipke. His witnesses pointed to his exemplary record, including his listing on the Bell Pilot Safety Award Recipients list (Exhibit A-68), and a Certificate of Bravery from the then Minister of Transport (Exhibit A-76) for his work in a rescue operation. Inspector Gagnon noted his professional and gentlemanly attitude and acknowledged in his Aviation Enforcement Case Report (Exhibit M-13) that Mr. Kipke had no previous record. Apart from these matters, however, every aspect of the alleged contravention was vigorously challenged by the Applicant and defended by the Minister during the course of a prolonged and somewhat repetitive Hearing.

[222] Subsection 7.91(4) of the Aeronautics Act provides that the burden of proof for showing that a person has contravened a designated provision is on the Minister and subsection 15(5) of the TATC Act provides that the standard of proof in any matter before the Tribunal is proof on a balance of probabilities. The elements of a contravention of subsection 602.13(1) of the CARs, as alleged in the NAMP, that must be proven are that:

  • Mr. Kipke;
  • on July 25, 2007;
  • at Little Grand Rapids, Manitoba;
  • conducted a take-off, approach or landing;
  • in an aircraft;
  • within;
  • the built-up area;
  • of a city or town.

Each of these elements was challenged.

[223] The Minister's evidence that Mr. Kipke was the pilot of the helicopter was based primarily on a statement of Mr. Kipke given to Inspector Gagnon after he had verbally warned Mr. Kipke in a telephone interview on August 29, 2007 (Exhibit M-10) that was made after Mr. Kipke had been given a similar warning in the Letter of Investigation (Exhibit M-18) that anything he said could be used in evidence against him. This was supported by the Aircraft Journey Log entries provided by Custom (Exhibit M-7) that show Mr. Kipke was the pilot that day. The Applicant's representative argued that the warned statement could not be relied on because it was not consistent with evidence at the Hearing. She referred specifically to two questions asked by Inspector Gagnon during the conversation: whether Mr. Kipke was aware of the work plan; and whether he was aware that there was "a kid there". She argued that the work plan had expired and that there was no "kid" there at the time and that these questions might have influenced Mr. Kipke's answers. On this basis she also challenged Inspector Gagnon's credibility and referred to an earlier case where his evidence was inconsistent with earlier statements he had made and so the evidence was found to be not credible. She also pointed out that the statements had been given in the context of an investigation under a different provision of the CARs. She also suggested that Inspector Gagnon had made up his mind before the interview because he told Mr. Kipke that he had a different view of the incident in that there had been a contravention, even after hearing Mr. Kipke's explanation during the conversation.

[224] In reply, the Minister's representative repeated that Mr. Kipke admitted to being the pilot of the helicopter and that this was also stated by Brian Hawes of Custom in a telephone conversation with Sergeant Raffle. She referred to Comeau where a warned statement was accepted as adequate evidence that the person making it was the PIC of the aircraft. The Minister's representative also urged that findings as to Inspector Gagnon's credibility be made on the basis of cross-examination at the Hearing rather than allegations during Arguments where he did not have a chance to reply.

[225] In Comeau, there was an extensive discussion of the effects of a warned statement. At the review hearing, the Review Member noted that, of the two statements given, one was written out but not signed and the other was given verbally but notes had been made by the investigator. He went on to hold that, while these statements might be characterized as hearsay, they were also admissions against interest and came within the common law exception to the rule against hearsay, and he treated them as acceptable evidence on that basis rather than relying on the provision that the Tribunal is not bound by the rules of evidence. The Appeal Panel for Comeau considered an insinuation by the appellant that the statement might have been obtained unfairly by the RCMP. The Panel did not accept that this was the case and noted that the appellant had neither offered any evidence to support his insinuation nor tendered any evidence in contradiction of the statements. The situation in this Hearing seems to be quite similar. Mr. Kipke admitted in a statement that he was the pilot of the helicopter. His representative asked me to draw certain conclusions as to influences on that statement but has offered no evidence in support. She alleged that certain statements are misleading, but that is a matter of interpretation. The reference to the work plan may be to a plan that had expired, but that plan existed and Inspector Gagnon's testimony was that he was not aware of its expiration. The statement that "there was a kid there" could be taken to mean that either a child was a resident in the RCMP compound, which was the case, or as the Applicant's representative seems to believe, that a child was outside. In either case, there was no evidence that either of these statements influenced Mr. Kipke in making his statement.

[226] I observe that the EMS Notes from the interview with Mr. Kipke (Exhibit M-6) state that a copy of the recorded conversation was copied to a disc and provided to the Applicant. It would, perhaps, have been preferable to have had a transcript of the statement provided in evidence so that there would have been clarity as to the warning given and the context of the remarks objected to by the Applicant. I note, however, that the Letter of Investigation (Exhibit M-8) included a statement that he was not obliged to assist in the investigation, as well as a warning that any statement he made could be used in evidence against him. I am satisfied by the evidence presented that it has been shown, on a balance of probabilities, that Mr. Kipke was indeed the pilot of the helicopter.

[227] The second element of the offence that was challenged by the Applicant's representative was the date of the occurrence. This challenge was based on errors in the dates in the Aviation Enforcement Case Report (Exhibit M-13), which gave the date of the incident as July 24, 2007, rather than July 25, 2007, and the date of the email of complaint as July 27, 2007, rather than July 26, 2007. In response, the Minister's representative pointed out that the date was established by the direct evidence of the two RCMP witnesses and set out in the email of complaint (Exhibit M-5). I further note that the correct date was set out in the Letter of Investigation (Exhibit M-8) and accepted by Mr. Kipke in his statement. I find that the date of the incident has been adequately proven.

[228] Issues were also raised concerning the location of the contravention. The first objection made by the Applicant was that the description of the location in the NAMP was Little Grand Rapids, Manitoba rather than Little Grand Rapids Indian Reserve. It was alleged that the actual location was inadequately proven and was based on diagrams prepared well after the event, which were admittedly not to scale (Exhibits M-2 and M-4). In reply, the Minister responded that the two RCMP officers had identified the place of landing and the photograph, and that the nature of the description in the NAMP had not been raised in cross-examination of the Minister's witnesses.

[229] The Applicant also stressed comments that I made during the March 2011 portion of the Hearing when I said that I had assumed that the RCMP compound was at the end of "RCMP Point". This was a mistake on my part since the location of the compound was clearly marked by Constable Willcock on the aerial map (Exhibit M-1) during the December 2010 portion of the Hearing.

[230] While the diagram of the RCMP compound might not have been to scale, it was accurate enough for the Intervenor, Mr. Robertson, to use in order to identify the compound in the Google maps of the area he introduced as Exhibits A-80 to A-83. I note that throughout the proceedings, the area in question was often referred to as Little Grand Rapids without characterizing it as an Indian reserve — this seems to be consistent with general practice. I note that on the Conservation Map of Manitoba (Exhibit A-20), while Indian reserves are outlined in pink, their names do not include the designation "Indian Reserve". While it could be argued that the name of Little Grand Rapids as it appears on this map refers only to the off-reserve community, the name alone is used in relation to other places identified as reserves, such as "Pauingassi" and "Wasagamack". I further note that in the CFS entry on St. Theresa Point, the reserve is identified by that name only (Exhibit A-94).

[231] There was no dispute as to the actual area of the landing on the RCMP compound. The Applicant's representative, however, challenged the identity of the helicopter and whether it had in fact landed. She argued that the operation was more in the nature of a "touch and go" and that the helicopter was never in the landing position. This position, however, was contradicted by the evidence of the Intervenor, Mr. Robertson, who stated that it was clear from the position of the rotors in the photographs he was shown that they were not able to provide lift and that the helicopter had landed.

[232] The Applicant's representative pointed out that none of the photographs of the helicopter showed its registration marks. I note, however, that it was recognizable as belonging to Custom to the extent that Sergeant Raffle was able to call Brian Hawes of the company for information on the matter. Brian Hawes identified the helicopter involved and provided a copy of its log (Exhibit M-7), which showed that Mr. Kipke had flown it on July 25, 2007. I note that pursuant to section 28 of the Aeronautics Act, an entry in a log that is required to be made is proof of its contents against the person required to make that entry. Taken together with the admission in Mr. Kipke's warned statement that he landed the helicopter, I find that the Minister has proven this element of the contravention to the required standard.

[233] I find, therefore, that the Minister has proven, on a balance of probabilities, that the place of landing was the RCMP compound on the Indian reserve at Little Grand Rapids, Manitoba.

[234] Discussion of the final three elements of the contravention must include a discussion of an argument of the Applicant that touches on all three elements. Throughout the Hearing, the Applicant's representative was persistent in presenting evidence relating to a Transport Canada initiative in assessing helicopter landing sites on Indian reserves in Manitoba to determine if they were in locations requiring them to be certified as heliports. It was her position that "violating" Mr. Kipke was related to this process and that the guidance criteria used in evaluating the sites (Exhibit A-34) was also used in determining whether Mr. Kipke had contravened subsection 602.13(1) of the CARs. The Minister's representative objected to the introduction of this evidence on the basis that it was irrelevant, but I allowed it subject to considerations of weight if, during Arguments, it was shown to relate to the matter at hand. Leaving aside any possible relevance to a constitutional defence, I find that this evidence is not relevant to the determination of whether Mr. Kipke landed "within", "the built-up area", "of a city or town".

[235] The investigation into this matter was initiated by a complaint from Sergeant Raffle and carried out by Transport Canada's Enforcement branch rather than by the ongoing assessment process initiated by a different Branch (Civil Aviation) of Transport Canada for a different purpose. The landing site at the RCMP compound was not part of the assessment process, and at the time of the incident Custom was using the new MTS site, the adequacy of which was not in question. The first indication of the assessment process was a letter to Custom, dated March 1, 2007 (Exhibit A-27), announcing that Transport Canada would be conducting assessments of frequently used landing sites, followed by a letter from Transport Canada to Custom, dated April 24, 2007 (Exhibit A-28), naming the reserves where assessments had been carried out, listing concerns about the sites and specifying what was necessary for their use. Similar letters were probably sent to the chiefs of the reserves since Exhibit A-29 is a letter to the Chief of the Little Grand Rapids First Nation reminding him of an earlier letter. All the other correspondence on the assessments took place after the landing at the RCMP compound and can have had no effect on the situation of July 25, 2007. Finally, there was no evidence that the investigating officer, Inspector Gagnon, took part in the assessment process carried out by another branch.

[236] The Applicant's representative took the position that the matter should be considered in the context of two prior occasions where investigations were initiated relating to landings at Little Grand Rapids, although in the end neither were proceeded with. While it was acknowledged that these events had been investigated, I did not allow further evidence concerning them since they did not take place at the RCMP compound and, while they might have been related to the assessment process, they were not relevant to this matter.

[237] It seems likely that the assessments were carried out to some extent using the guidance criteria objected to by the Applicant, which were attached to the letter of January 21, 2008 (Exhibit A-34). These criteria were later described as a draft and unavailable to the public. Inspector Gagnon testified that he did not use them in determining that Mr. Kipke had contravened subsection 602.13(1) of the CARs. The Applicant's representative challenged Inspector Gagnon's credibility on this point on the grounds that there was one Transport Canada and that one section or branch must know what the other is doing. While it is possible or probable that officials in one branch are generally aware of the activities in other branches, it is not as probable that they would be aware of the specifics of these activities. For example, while Inspector Gagnon was aware that Custom had a work plan that allowed it to use the old MTS site, he was not aware enough of the specifics of the permission to know when it had expired. I find that his evidence that he did not use the Guidance criteria in relation to Mr. Kipke to be credible.

[238] The Applicant's representative argued that decisions relating to built-up areas and cities or towns should be based on Policy Letter 145 (Exhibit A-18) rather than the Guidance criteria (Exhibit A-34) because the former has been published on the Transport Canada website and the public is aware of its contents. The legal effect of a policy letter was considered by an Appeal Panel of the Tribunal in Canada (Minister of Transport) v. Foxair Heliservice Inc., 2002, CAT File No. Q-2427-37 (Appeal). In that matter, the alleged violator attempted to rely on the policy letter which had come into effect after the event. The Appeal Panel held the following:

We would add that even if this policy had been in force, it does not contain a legal definition having a binding effect since it is not the Law, i.e., part of the Aeronautics Act or the CARs; this policy letter giving direction to certain Transport Canada officials for the "interpretation" of the aforementioned concept of "within" is just that, an interpretation. This draft policy letter submitted at the hearing, though giving an explanation of the meaning of "within...", does not relieve the pilot from using common sense in the determination of whether a chosen landing site lies "within [à l'intérieur] a built-up area of a city or town" as the regulation stipulates.

[239] In Canada (Minister of Transport) v. Farm Air Ltd., 2004, TATC File No. C-2810-41, the Review Member elaborated on this point:

In any case, a Transport Canada policy letter is not "law" that must be followed by a Transportation Appeal Tribunal hearing officer. Rather, whether or not an area is "built-up" within the meaning of CARs 602.14(2)(a) is a matter for the hearing officer to decide based on the facts in each case.

[240] Consequently, I find that whether Policy Letter 145 or the guidance criteria are used by Transport Canada in reaching its conclusions, when those conclusions are challenged, the decision shall not be based on either of those documents, rather on the facts of the individual case interpreted in the light of the modern principle of statutory interpretation.

[241] The next two elements that must be shown are that there was a landing and the landing was within a built-up area. It has often been noted that the phrase "built-up area" is not defined in the legislation, although meanings have been attached to it in a number of decisions of the Tribunal. Some of these matters were determined under the "low flying" regulation, section 602.14 of the CARs. As the Applicant has correctly pointed out, when the Air Regulations were replaced in 1996 with the CARs, there was no substantial change made to the concept of "built-up area of a city or town" between subsection 602.13(1) of the CARs and subsection 534(7) of the Air Regulations. There was, however, a change to the overflight rule in paragraph 602.14(2)(a) of the CARs. The predecessor, paragraph 534(2)(a) of the Air Regulations, referred to the "built-up area of a city, town or other settlement", whereas the CARs provision refers only to a "built-up area". While the overflight rule is not the subject of the issue before me, subsection 602.13(1) of the CARs must be interpreted in a manner consistent with its wording. It seems clear that before 1996, at least, the regulator acknowledged that there were settlements that could not be considered cities or towns. The omission of the phrase "city, town or other settlement" in paragraph 602.14(2)(a) seems to be an indication that, with respect to overflights, the concept of "built-up areas" was expanded so that it would include areas not extensive enough to be considered settlements.

[242] In Vincent, the Review Member referred to Stoesz where the Judge stated that "built up suggests to me structures that are, especially those that are not abandoned, erected or built by man and includes such structures as private dwelling residences, schools, elevators, service stations and so forth," but added that "water or oil tank as well as telephone poles are structures erected by man and form part of an environment constituting a built-up area."

[243] In Foxair, it was also found that a bridge is a structure.

[244] The Minister argued that the community of Little Grand Rapids was similar to the community of Red Sucker Lake described in paragraph [43] of Schroeder:

The community of Red Sucker Lake is located in a relatively remote area of northern Manitoba. Dwelling houses, Band Hall and a school all form part of the community. The surrounding area is lake or tree and brush covered. As compared to this surrounding area, I find that the community is a "built-up area" for purposes of section 602.14 of the CARs…

[245] I find that the RCMP compound in Little Grand Rapids is part of a built-up area. The aerial photograph (Exhibit M-1), although taken before the compound was built, shows a community established mainly along the shore with a road running more or less parallel to the shore with other roads leading off to clusters of structures, including one to the tip of the "RCMP Point". The diagrams (Exhibits M-2 and M-4) show that the compound itself could be characterized as a built-up area. It is comprised of houses, the RCMP compound, various storage buildings and tanks grouped into a cohesive whole, making it a small neighbourhood in a community of neighbourhoods.

[246] I note that the Appeal Panel in Delco agreed with the statement in R. v. Crocker, 1977 33 N.S.R. (2d) 177 that the regulations were designed for pilots and should be recognizable from the air. This was the position stated by the Intervenor, Mr. Robertson, who testified as an expert. In the present matter, however, an aerial map (Exhibit M-1) taken from a height at a much higher altitude than a helicopter would fly when crossing the water from the airport on the other side, clearly shows the community along the shore. In addition, the Google satellite maps proffered by Mr. Robertson clearly show the built-up area of both the entire community and the compound.

[247] The next question is whether the landing was "within" the RCMP compound. The Applicant's representative referred to Policy Letter 145 (Exhibit A-18) definition of "within":

The word "within" in this context has been interpreted to mean substantially surrounded by the built-up area. In practical terms this would mean that a landing site would have to be surrounded on all four sides or at least to the point that a landing aircraft would overfly a structure at some point, or fly close enough to create a hazard. As an example, a landing site on the edge of a town or on a shoreline would not require an authorization if the landing could be accomplished without overflying a structure or creating a hazard to any property.

[248] She pointed out that neither of the RCMP witnesses who testified saw the actual approach, but that the evidence was that the helicopter was hovering near the garage and over the road. The Intervenor, Mr. Robertson, testified that there was a clear path to the landing site along the road from the shore that did not pass over any structures; and that equally there was a path over the trees. It was also stated that the guidance criteria (Exhibit A-34) defined "within" in terms of distances from structures and public use areas and alleged that it was on that basis that it had been determined that the landing was within the built-up area. Finally, she argued that there was no hazard because Constable Willcock's evidence was that he felt safe.

[249] A built-up area cannot be confined merely to the structures that have been built upon it but must also include the surroundings of those structures, especially those features that are necessary for the use and enjoyment of a structure. These features include the means of getting to the structure, such as roads and driveways, and the yards of dwellings which provide for the recreation of the householder and his family. Thus, in Foxair, it was held that a building's parking lot was part of the built-up area and it was also mentioned by the Appeal Panel that to reach that parking lot it was necessary to fly over the highway leading to the Champlain Bridge, which is a structure. The same finding was made with respect to a parking area behind a bar in Vincent.

[250] The case of Canada (Minister of Transport) v. Brookes, 1989 CAT File No. O-0067-33 (Review) was a matter where a balloon took off from a park in Ottawa that was near a shopping centre but located between the river and a road running along that river. In finding it was within the built-up area of Ottawa, the Tribunal stated:

… there is a considerable amount of parkland in this area. All of which at one point or another is surrounded by streets and presumably contain dwellings and other buildings. This area is not on the edge of the city but well inside the city.

In Delco, it was also found that a river is part of the built-up area.

[251] I find that a road running through a built-up area is within that area as is the yard of a dwelling. Furthermore, the road in question led from the RCMP dock, which is itself a structure and part of the compound. Consequently, a landing in the yard of Constable Catellier's dwelling is a landing within the built-up area. I would add that Sergeant Raffles's evidence that he and a Hydro worker felt it necessary to seek the protection of a parked truck supports an assertion that the landing created a hazard.

[252] The final aspect of the CARs to be addressed is whether the built-up area is a city or town. The Minister argued that the population, number of dwellings, amenities and governance system of Little Grand Rapids are indicative of its status as a town. The Applicant's arguments were that cities and towns come under the exclusive jurisdiction of the province by virtue of section 92.8 of the Constitution Act that an Indian reserve could not, by definition, be a town; and that Indian reserves are expressly excluded from the provincial Municipal Act and Northern Affairs Act which govern municipalities in Manitoba. The Applicant's representative also attacked the statement in the Aviation Enforcement Case Report (Exhibit M-13) that Little Grand Rapids is deemed to be a town as an indication that the enforcement decision was based upon the Guidelines criteria (Exhibit A-34).

[253] While it may be that in most instances one can look to the provincial status of a community to determine if that community is a city or a town, the Aeronautics Act, a federal statute, and its regulations apply throughout Canada in the absence of any express limitation on that application. Consequently, at least in areas that come under federal jurisdiction or where there is no provincial characterization, the commonly understood meaning of town applies. I note, moreover, that subsection 30(2) of the Municipal Act, which sets out what is required for a regulation to establish what is meant by municipality, indicates that an urban municipality must include the term "city", "town" or "village" in its name. It is possible to conclude from this that there must have been a community that met one of these characterizations before it formally became a municipality under that Municipal Act.

[254] One matter where the definition of town was discussed is Vincent where the issue was the difference between the words used in the French and English version of subsection 602.13(1) of the CARs. The Appeal Panel referred to the Petit Robert for the definitions of ville, translated as "a geographical and social environment formed by a relatively substantial complex of buildings," and village, translated as "a rural settlement; a group of dwellings large enough to have a life of its own (in contrast to a hamlet)." The Appeal Panel also referred to the Canadian Oxford Dictionary for the definitions of "town" as "an urban area with a name, defined boundaries and local government, usually larger than a village and smaller than a city" and "village" as "a group of houses and associated buildings, larger than a hamlet and smaller than a town, especially in a rural area." On the basis of these definitions, the Appeal Panel decided that "village" in the French version of the regulation was not equivalent to "town" in the English version in that it would apply to more communities and impose greater limits on aviation activities; consequently, the English version would apply.

[255] The same conclusion was reached in Delco where the English definitions were taken from the New Illustrated Webster's Dictionary of the English Language where "town" is defined as "any considerable collection of dwellings and other buildings larger than a village and comprising a geographical and political community unit, but not incorporated as a city."

[256] To a certain extent, all of these definitions are somewhat circular in that they characterize a town as being smaller than a city but larger than a village, and a village as being smaller than a town but larger than a hamlet. I also note that the use of the word "urban" in the Canadian Oxford Dictionary is circular since it defines "urban" as "living in, or situated in a town or city". Thus a town may be considered an urban oasis in a largely rural or sparsely inhabited area.

[257] Each definition, however, includes other criteria. The Canadian Oxford Dictionary cited in Vincent states that a town should have "a name, defined boundaries, and local government." The New Illustrated Webster's Dictionary of the English Language cited in Delco defines a town as a "geographical and political community unit." The definition for "ville" in the Petit Robert is the most complete definition for town and includes concepts of "a geographical and social environment", and "a relatively substantial complex of buildings," where "most of whose inhabitants work in commercial, industrial or administrative jobs within its boundaries." [My translation]

[258] The Minister's representative argued that Little Grand Rapids has sufficient population and structures to be characterized as a town, taking into consideration the amenities it possesses. A population that ranges from 1 600 to 2 000 is ambiguous; it could indicate either a large village or a small town. To a large extent, therefore, the precise characterization will depend upon the amenities of the community. In listing these amenities, however, the Minister's representative failed to distinguish between those situated on the Little Grand Rapids Indian Reserve and those on Crown land on the other side of the water. I believe that, in light of the definitions, as well as the common understanding, two areas that come within different constitutional jurisdictions under separate forms of governance cannot be considered a single entity with "a name, defined boundaries and a local government" or a "geographical and political community unit". Therefore, consideration as to whether Little Grand Rapids Indian Reserve is a town must be limited to considering that Reserve in isolation.

[259] I agree with the Minister's position that, together with considerations of size, amenities are what distinguish a town from other types of small settlements. It seems to me that an important aspect of a town is that its amenities meet all the immediate needs of its residents. While Little Grand Rapids Indian Reserve may not have a hospital, a nursing station provides immediate medical assistance. It has places for community activities and a two or three small convenience-type stores; it has a school but one that does not provide for a complete secondary education. While there may be many towns in similar situations, one would normally expect that there would be a complete secondary school within normal commuting distance (I note that where the population of a community does not support the establishment of a secondary school, it might be an indication that a community is "smaller than a town"). Finally, the only commercial establishment providing food and lodging is off the reserve.

[260] Most importantly, however, the Reserve community lacks two amenities that seem to me essential for a town: a post office and a store that can be relied upon to provide necessities. Both of these are located off the Reserve and cannot be considered part of its amenities. A post office is an identifier of a community and, while it may be an anomaly that the post office used by the residents of the Little Grand Rapids Indian Reserve is off the Reserve, the fact that it is off the Reserve means it cannot be considered a part of the same political unit. Similarly, the concept of town includes the expectation that one would be able to obtain the necessities of life within its boundaries. While the evidence is that there are two or three small stores within the community, they cannot be counted on to meet this standard, whereas the Northern Store can; for example, while gasoline is not always available on the Reserve, it is available at the Northern Store. I also note that the evidence was that the post office and Northern Store employ residents of the Reserve.

[261] I find that a substantial part of the educational and commercial life of the Reserve community takes place outside its boundaries. While the geographic cohesion of the amenities on each side of the dividing waters might lead to an assumption that there is a single community, there is an ineradicable difference in their political organization and governance that prevents them from having a single legal identity. Given that there is a division of essential amenities that identify a town over two distinct political and legal units, and that two of the most important of these amenities are outside of the Reserve boundaries, I find that the Minister has not shown, on a balance of probabilities, that Little Grand Rapids Indian Reserve is a town within the meaning of subsection 602.13(1) of the CARs. Since I have reached this conclusion, there is no need to consider the constitutional defences raised by the Applicant.

VII. DETERMINATION

[262] The Minister of Transport has not proven, on a balance of probabilities, that the Applicant, William Edward Kipke, contravened subsection 602.13(1) of the Canadian Aviation Regulations. Therefore, the charge is dismissed.

June 28, 2012

Elizabeth MacNab

Member


Interlocutory Decision
Elizabeth MacNab


Decision: September 7, 2012

Citation: Kipke v. Canada (Minister of Transport), 2012 TATCE 17 (Ruling)

RULING ON APPLICANT'S MOTION FOR COSTS

Held: The request for costs is denied.

I. BACKGROUND

[1] On November 27, 2007, the Minister of Transport ("Minister") issued a Notice of Assessment of Monetary Penalty ("NAMP") to the Applicant, William Edward Kipke, alleging that he had contravened subsection 602.13(1) of the Canadian Aviation Regulations, SOR/96-433 ("CARs") and assessing a monetary penalty of $750 in respect of that penalty. The matter was heard over three sessions between December 2010 and September 2011, and on June 28, 2012, the Tribunal issued a Determination finding that the Minister had not, on a balance of probabilities, proven the allegation against Mr. Kipke.

[2] A number of preliminary matters were raised before the commencement of the Hearing, including Notices of Motion filed by the Applicant, dated November 30, 2009, December 14, 2010, and December 16, 2010. All three of these Motions included requests for costs. The first two motions were dismissed and the third was determined as part of the Hearing. The reasons for refusing the requests for costs were set out in the Determination regarding the first motion, and no specific discussion of costs was included in the Determination of the other two motions.

[3] On July 27, 2012, the Applicant, through his Representative, sent a letter to the Transportation Appeal Tribunal of Canada ("Tribunal") requesting, on the basis that the Tribunal's Determination was in accord with the motion of December 16, 2010, that he be awarded costs as between a solicitor and his client and that the award be for double costs in accordance with Rule 420 of the Federal Courts Rules, SOR/98-106 ("FC Rules").

II. APPLICANT'S ARGUMENT

[4] The Applicant's Representative referred to the Offer to Settle made to the Minister's Representative on July 8, 2010, wherein she asked the Minister's Representative to review the matter, and indicated that the Applicant would agree to a withdrawal of the matter without claiming costs.

III. MINISTER'S RESPONSE

[5] The Minister's Representative responded that the basis on which the Tribunal can award costs is set out in section 19 of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29 ("TATC Act"), and Rule 420 of the FC Rules does not apply. Section 19 of the TATC Act sets out three circumstances in which the Tribunal may award costs and none of these circumstances apply in this matter. The issue before the Tribunal, the definition of "town" for the purposes of the CARs, had not been settled by the jurisprudence and it was not "frivolous or vexatious" to pursue the matter.

IV. APPLICANT'S REPLY

[6] The Applicant's Representative argues that Rule 420 of the FC Rules should apply and that the Offer to Settle, dated July 8, 2010, was intended to support a claim for costs under that Rule if the Applicant was successful. Rule 420 of the FC Rules applies to matters before Federal Tribunals in relation to matters under federal legislation. Rule 4 of the Transportation Appeal Tribunal of Canada Rules, SOR/93-346 ("TATC Rules"), allows the Tribunal to address the matter.

[7] Principles of natural justice support a claim for costs. Costs should follow the result; otherwise, the Minister would be free to use his "unlimited" resources to bring charges against pilots with impunity.

[8] She also argues that the definition of "town" has not been settled for the purposes of the CARs by the result in this matter. It does not settle the matter with respect to "settlements" on Indian Reserves, nor does it address the matter with respect to non-Reserve lands.

[9] She submits that the matter was vexatious. She relied on the evidence of Grand Chief Evans to argue that the charges against Mr. Kipke were brought as part of a Transport Canada initiative to pressure certain First Nations to build heliports on their Reserves and suggests that it was unfair to Mr. Kipke to place the burden on him of determining whether the Little Grand Rapids First Nation Indian Reserve is a town.

V. ANALYSIS AND DISCUSSION

[10] Subsection 19(1) of the TATC Act sets out the authority of the Tribunal with regard to costs as follows:

19. (1) The Tribunal may award any costs, and may require the reimbursement of any expenses incurred in connection with a hearing, that it considers reasonable if

(a) it is seized of the matter for reasons that are frivolous or vexatious;

(b) a party that files a request for a review or an appeal and does not appear at the hearing does not establish that there was sufficient reason to justify their absence; or

(c) a party that is granted an adjournment of the hearing requested the adjournment without adequate notice to the Tribunal.

[11] This section was exhaustively analyzed by an Appeal Panel of the Tribunal in Butterfield v. Canada (Minister of Transport), 2004, TATC File No. P-2933-02 (Appeal). That matter involved the Appellant's failure to appear at the Appeal Hearing and was based on paragraph 19(1)(b) of the TATC Act. The Appeal Panel, however, discussed the circumstances in which each paragraph might be applied, as well as the meaning of "costs" as used in the subsection. The Minister had asked for costs to be assessed on the basis of Tariff B of the FC Rules on the inference that an award of costs would be analogous to those awarded by the Federal Court. The Appeal Panel held that this was not the case, and that there was a different purpose to costs awarded by such courts, and to those authorized under the TATC Act. Unlike costs awarded under the FC Rules, which are intended to indemnify a successful party for costs incurred, subsection 19(1) of the TATC Act authorizes costs where a party may be penalized for its actions in relation to a hearing, and does not depend upon the ultimate success or failure of that party.

[12] Although she made no mention of paragraph 19(1)(a) of the TATC Act in her original request of November 9, 2009, the Applicant's Representative stated in her reply that the charge was "vexatious" as having been brought by the Minister as part of the pressure from Transport Canada to require certain Indian Reserves to establish heliports. This allegation ignores the findings in paragraphs [234] and [235] of the Determination on this matter, which concluded that the charge against and investigation of Mr. Kipke were not related to this initiative.

[13] The Minister's Representative, in her response to the Request for Costs, argues that none of the criteria set out in subsection 19(1) of the TATC Act apply, and that the matter could not be considered frivolous or vexatious since it presented the issue, heretofore unsettled, of the definition of "town" for the purposes of subsection 602.13(1) of the CARs. In her reply, the Applicant's Representative argues that it was apparent from the aerial photograph shown to the Minister's Representative that the settlement at Little Grand Rapids Indian Reserve was not a "town", and that the Determination in this matter did not settle the definition of "town" with regard to non-Reserve lands.

[14] While the Determination did not establish a definition of "town", it did from paragraphs [252] to [261] establish the criteria that should be applied in determining whether a community should be considered a town in geographic areas that are within federal jurisdiction and, to that extent, determined an area of law that before was unsettled. While there was no determination as to whether a settlement on a First Nations Reserve could be a town under constitutional law, both parties acknowledged that matters should not be determined on the basis of a constitutional question if they can be determined on the basis of general law, as happened in this matter. Consequently, I find that the charge was laid in a manner that was neither frivolous nor vexatious, but rather dealt with a substantial issue.

[15] The Applicant's Representative argues that costs should be awarded as a matter of fairness since Mr. Kipke was put to the expense of defending an allegation which was not supported in the Determination. She did not, however, provide any precedent either where costs had been awarded on this basis, or where the statute under which the proceedings took place included specific authority to award costs and placed limitations on that authority. As pointed out in Butterfield, the Tribunal's concern is that no person should be deterred from seeking a Tribunal Review out of concern that costs might be assessed against him. Costs, in this context, are seen as a method of discouraging the behaviours set out in subsection 19(1) of the TATC Act, rather than as an incident of success.

[16] The Applicant's Representative argues that the Tribunal is entitled to make orders relating to costs pursuant to Rule 4 of the TATC Rules which provides:

4. Where a procedural matter not provided for by the Act or by these Rules arises during the course of any proceeding, the Tribunal may take any action it considers necessary to enable it to settle the matter effectively, completely and fairly.

[17] I note that the Tribunal's authority under this rule is limited to matters of procedure. I do not believe that a decision to award costs in the absence of a statutory authority to do so can be considered a matter of "procedure", especially in a situation where the governing statute (here the TATC Act), includes specific provisions concerning costs that do not apply to the situation on which the request for costs is based. The nature of a Tribunal hearing is set out in subsections 15(1) and (2) of the TATC Act as follows:

15.(1) Subject to subsection (2), the Tribunal is not bound by any legal or technical rules of evidence in conducting any matter that comes before it, and all such matters shall be dealt with by it as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

(2) The Tribunal shall not receive or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.

[18] While an applicant may choose to present his case in a more formal manner, as if it were before a court, this choice does not diminish the thrust of subsection 15(1) of the TATC Act and the legislative intention to provide an informal, expeditious and fair hearing. Once a determination is made that costs should be awarded according to the result, applicants risk a claim for costs by the Minister if they are unsuccessful. Again, as asserted in Butterfield: "We do not want anyone to be deterred from applying to the Tribunal because of a fear of costs".

[19] The Applicant's Representative submits in her Reply that the FC Rules apply to matters before Federal Tribunals in relation to issues tried under legislation of the Parliament of Canada. She provides no authority for this submission and it is not supported by the words of subsection 1.1(1) of the FC Rules, which provides that the FC Rules apply to proceedings before the Federal Court and Federal Court of Appeal. While it has been the practice of the Tribunal to adopt the FC Rules in the absence of specific Tribunal Rules, this practice has been limited to matters within the Tribunal's jurisdiction.

[20] The Applicant's argument that Rule 420 of the FC Rules should govern the awarding of costs fails since there is no authority for the Tribunal to order such costs.

September 7, 2012

Elizabeth MacNab

Member


Appeal decision
Elizabeth MacNab


Decision: April 23, 2013

Citation: Kipke v. Canada (Minister of Transport), 2013 TATCE 13 (Appeal)

APPEAL DECISION AND REASONS

Held: The Appellant's Appeal on the issue of costs is dismissed.

I. BACKGROUND

[1] The Minister of Transport (Minister) issued a Notice of Assessment of Monetary Penalty (Notice) to the Applicant, William Edward Kipke, on November 27, 2007, alleging that he had contravened subsection 602.13(1) of the Canadian Aviation Regulations, SOR/96‑433 (CARs). The monetary penalty assessed for this violation was $750.

[2] On December 11, 2007, the Applicant submitted a Request for Review of the Minister's decision to the Transportation Appeal Tribunal of Canada (Tribunal), and a Review Hearing occurred from December 16 to 18 and 20 to 21, 2010; March 28 to 31, 2011; and September 26 to 28, 2011. The Review Member's Determination, dated June 28, 2012, dismissed the charge against Mr. Kipke, finding that the Minister had failed to prove that Mr. Kipke had violated the CARs.

[3] On July 27, 2012, the Appellant submitted a Request for Costs on this matter. The Review Member issued a Ruling on the Applicant's Motion for Costs, dated September 7, 2012 (Ruling), in which she denied the Appellant's request. The Appellant requested an appeal of the Review Member's Ruling on October 3, 2012.

[4] The Appeal Panel's decision on this issue is based on an examination of written submissions from both Parties.

II. STATUTE

[5] Subsection 19(1) of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29 (TATC Act) reads as follows:

19. (1) The Tribunal may award any costs, and may require the reimbursement of any expenses incurred in connection with a hearing, that it considers reasonable if

(a)  it is seized of the matter for reasons that are frivolous or vexatious;

(b)  a party that files a request for a review or an appeal and does not appear at the hearing does not establish that there was sufficient reason to justify their absence; or

(c) a party that is granted an adjournment of the hearing requested the adjournment without adequate notice to the Tribunal.

III. RULING ON COSTS

[6] In her Ruling, the Review Member denied the Appellant's Request for Costs, and examined Tribunal jurisprudence relating to the Tribunal's jurisdiction to award costs.

[7] The Review Member considered the Appellant's claim that the charge against Mr. Kipke was vexatious because it was brought for the purpose of pressuring certain Indian Reserves to establish heliports. However, the Review Member found that the charge in this instance was not vexatious, and stated in paragraph [12] of her Ruling that the allegation of vexatiousness “ignores the findings in paragraphs [234] and [235] of the Determination on this matter, which concluded that the charge against and investigation of Mr. Kipke were not related to this initiative.”

[8] The Review Member then considered the Minister's argument that the matter before the Tribunal could not be considered frivolous or vexatious since it considered the previously undecided issue of the definition of “town” for the purposes of subsection 602.13(1) of the CARs. The Review Member accepted this argument, noting that while the Determination did not establish a definition of “town”, it nonetheless established the criteria to apply in considering whether a community should be considered a town. To that extent, the Review Member found that the Determination had decided a previously unsettled area of law.

[9] The Review Member next addressed the Appellant's argument that costs should be awarded as a matter of fairness because Mr. Kipke had to undertake the expense of defending the failed charge before the Tribunal. The Review Member did not accept this argument, and noted that the Appellant had brought no precedent to demonstrate costs having been awarded on this basis. Indeed, the Review Member noted that costs in the Tribunal context are a method of discouraging the behaviours set out in subsection 19(1) of the TATC Act, rather than an incident of success.

[10] While the Appellant argued that the Tribunal has jurisdiction to award costs pursuant to Rule 4 of the Transportation Appeal Tribunal of Canada Rules, SOR/93‑346 (TATC Rules), the Review Member found that the Tribunal's authority under this Rule is limited to matters of procedure. According to the Review Member:

I do not believe that a decision to award costs in the absence of a statutory authority to do so can be considered a matter of “procedure”, especially in a situation where the governing statute (here the TATC Act), includes specific provisions concerning costs that do not apply to the situation on which the request for costs is based.

[11] The Review Member then went on to consider the nature of a Tribunal hearing as demonstrating the legislative intent for the Tribunal to provide informal, expeditious, and fair hearings.

[12] The Review Member expressed concern that if a determination were to be made that costs should be awarded according to result, an applicant would risk a claim for costs by the Minister if they are unsuccessful before the Tribunal. She then quoted Butterfield v. Canada (Minister of Transport), 2004, TATC File No. P‑2933‑02 (Appeal), wherein the Appeal Panel noted that “we do not want anyone to be deterred from applying to the Tribunal because of a fear of costs.”

[13] Finally, the Review Member considered the Appellant's submission that the Federal Courts Rules, SOR/98‑106 (FC Rules), should apply in this instance. The Review Member found that the Appellant had brought no authority for this submission, and that this notion was not supported by subsection 1.1(1) of the FC Rules, which states that the FC Rules apply to proceedings before the Federal Court and the Federal Court of Appeal. The Review Member noted that while it has been Tribunal practice to adopt the FC Rules in the absence of specific Tribunal Rules on a matter, this practice is limited to matters within the Tribunal's jurisdiction. As such, the Appellant's argument that Rule 420 of the FC Rules should govern the awarding of costs in this instance must fail, as there is no authority for the Tribunal to order such costs.

IV. GROUNDS FOR APPEAL

[14] The Appellant requested an appeal of the Review Member's Ruling on the following grounds:

  1. The Review Member erred in giving effect to the Minister's submissions that the Tribunal has no jurisdiction to award costs in this matter;
  2. The Review Member erred in ruling that the Tribunal's jurisdiction to award costs is limited to section 19 of the TATC Act;
  3. The Review Member erred in ruling that the charge against the Appellant was not vexatious.

V. ARGUMENTS

A. Appellant

[15] The Appellant argues that his Notice of Motion for Dismissal dated December 16, 2010, could be considered successful since the Review Member dismissed the Minister's case in finding that Little Grand Rapids First Nation (Little Grand Rapids) was not a city or town pursuant to subsection 602.13(1) of the CARs.

[16] The Appellant submits that the definition of town is clear in fact and law, and that Little Grand Rapids is clearly not a town by either definition. According to the Appellant, “there was no bona fide issue under any version of Canadian law that supported the proposition that Little Grand Rapids First Nation Indian Reserve was a town.” Rather, the Appellant's Representative argues that Mr. Kipke was merely a pawn in the Minister's attempt to force the First Nations to build heliports. As such, the Appellant submits that there was no genuine issue with regard to the definition of town, as alleged by the Minister.

[17] Moreover, the Appellant submits that the case against Mr. Kipke was either a test case or a public interest case, and as a result, argues that higher costs should be awarded to the Appellant (see Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at page 80). Based on the circumstances of this case, the Appellant submits that costs should be awarded on a solicitor-client basis.

[18] The Appellant also argues that a remedy is available to him pursuant to section 24 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11(Charter), because the Review Member's Determination favours the rule of law. Consequently, the Appellant argues that the Tribunal has jurisdiction to award costs under both section 19 of the TATC Act and section 24 of the Charter.

[19] Furthermore, the Appellant submits that the Minister is incorrect in arguing that the Tribunal's jurisdiction to order costs is limited to the specific instances found in section 19 of the TATC Act. Indeed, to argue that section 19 permits the Tribunal to order costs only in three specific instances ignores the opening words of section 19 which state that “[t]he Tribunal may award any costs….” The Appellant argues that these words are expansive and permissive, and connote discretion over the issue of costs. Indeed, the Appellant contends that the circumstances listed in subsection 19(1) were not intended by Parliament to be exhaustive and to limit the jurisdiction of the Tribunal with regard to costs.

B. Minister

[20] The Minister submits that since no definition of “town” is set out in the CARs, this issue was argued on various grounds before the Tribunal, including factual, legal and constitutional grounds. In her Determination, the Review Member set out the criteria to be considered when evaluating whether a community is a town pursuant to the CARs, and thenapplied this criteria to Little Grand Rapids.

[21] With regard to the Tribunal's jurisdiction concerning costs, the Minister argues that the Tribunal may only order costs in the three instances listed in subsection 19(1). The Minister contends that Parliament intended for the Tribunal process to be informal, expeditious, and fair, and that subsection 19(1) must be interpreted in light of the whole section, the TATC Act, and the intent of Parliament. The Minister submits that the wording of section 19 restricts the Tribunal's jurisdiction over costs to situations where a party's behaviour undermines the goal of having an expeditious and fair hearing. The Minister contends that this interpretation is consistent with the intent of Parliament, with Tribunal jurisprudence, and with the Review Member's Ruling on this issue, which should be upheld.

[22] Moreover, the Minister notes that Butterfield enumerated the inherent risks with the Appellant's suggested interpretation of section 19, which include the following:

  1. A person could be deterred from seeking a Tribunal review on the basis that costs might be awarded against them;
  2. Costs could be sought by the Minister when successful;
  3. Proceedings before the Tribunal could become costlier.

The Minister submits that these consequences would be contrary to the intent of Parliament in creating an accessible Tribunal with an informal and efficient hearing process.

[23] The Minister argues that the interpretation suggested by the Appellant is incongruent with the principles of statutory interpretation. The Minister submits that the Tribunal should take a contextual approach of statutory interpretation, and consider the wording of section 19 of the TATC Act as a whole, as well as with respect to the intent of Parliament. The Appellant's suggestion to consider the first six words of the section exclusively from the rest of the section is contrary to the wording and intent of the section; such an approach would lead to a perverse interpretation of the Tribunal's authority to award costs.

[24] With regard to the Appellant's argument that the issue before the Tribunal was frivolous or vexatious, the Minister submits that the issue of what constitutes a “town” pursuant to the CARs was not previously settled in jurisprudence, and as such was not frivolous or vexatious.

[25] Moreover, the Review Member considered the issue of whether the charge against Mr. Kipke was vexatious and determined at paragraph [12] of her Ruling that such an allegation “ignores the findings in paragraphs [234] and [235] of the Determination….” Indeed, the Review Member found in paragraph [14] of her Ruling that “the charge [against Mr. Kipke] was laid in a manner that was neither frivolous nor vexatious, but rather dealt with a substantial issue.”

[26] In considering the issue of whether costs may be awarded pursuant to subsection 24(1) of the Charter, the Minister argues that the Charter remedy is not available in this case because the case was not decided on the basis of the Charter or on a constitutional issue. According to the Minister, “without a finding of a Charter breach, subsection 24(1) of the Charter is not engaged and there is no basis for an award of costs related to this section of the Charter.”

[27] Furthermore, the Minister argues that since the Tribunal does not have the authority to award costs in the way suggested by the Appellant, neither can the Tribunal rely on the cost provision of the FC Rules orTariff B.

C. Appellant's Reply

[28] In reply, the Appellant reasserts that the charge against him was laid to exert influence over both helicopter operators and the First Nations. The Appellant alleges that for the Minister to hold otherwise is contrary to the evidence given by his own witness, Sergeant John Raffle. For this reason, the Appellant alleges that the charge against him was vexatious.

[29] Moreover, the Appellant submits that the Review Member's Determination cannot be interpreted as an authority for defining a town. Indeed, the Review Member herself stated in her Ruling that “the Determination did not establish a definition of town….” The Appellant notes that the Review Member did not need to refer to legal or constitutional principles in reaching her decision on this case. Rather, the Determination was decided on the fact that Little Grand Rapids does not have a grocery store or post office. The Appellant submits that this alone demonstrates the lack of merit of the charge against him.

[30] In terms of the availability of a Charter remedy, the Appellant submits that because his essential constitutional argument regarding the rule of law was successful, the Charter is engaged and a remedy is available to him under section 24 of the Charter.

[31] The Appellant submits that the principles discussed in the Supreme Court case of Canada (Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 (Human Rights Commission) support his argument that the Tribunal has jurisdiction to “award any costs.” Indeed, the legislature would have clearly limited the Tribunal's jurisdiction with regard to costs had it intended to do so. As it is, however, the Appellant argues that the text, context, and purpose of the legislation clearly show that the Tribunal has the authority to award legal costs.Furthermore, the Appellant notes that subsection 19(2) of the TATC Act makes it clear that both costs and expenses can be awarded under this subsection.

[32] The Appellant also expresses concern that it is only Tribunal applicants who would be negatively affected if the Tribunal were to decide that an offer to settle without costs has no weight in a Tribunal proceeding. The Appellant submits that an inequity exists in the bargaining positions of the Minister and of Tribunal applicants, and that while the Minister can offer to settle by reducing a fine, an applicant is powerless if deprived of the ability to make an offer of settlement as contemplated by the FC Rules. Furthermore, the Appellant submits that the Tribunal deciding it has no jurisdiction to order costs in cases like this would result in the Tribunal becoming less accessible to applicants. The Appellant also suggests that a remedy of costs could fix the inequality in the bargaining positions, and enable applicants before the Tribunal to retain counsel to ensure that justice is done.

VI. ISSUES

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

  1. The appropriate standard on which to review the Ruling;
  2. The scope of the Tribunal's ability to award costs;
  3. Whether the charge against Mr. Kipke was frivolous or vexatious; and
  4. Whether costs are appropriate in this case.

VII. ANALYSIS

A. Issue 1 – What is the appropriate standard on which to review the Ruling?

[34] Before reviewing a Determination, the Appeal Panel must determine the standard on which to review the Review Member's Ruling. The appropriate standard on which an appeal panel should review a review member's determination is an issue that has been previously considered and determined in Federal Court jurisprudence.

[35] In Billings Family Enterprises Ltd. v. Canada (Minister of Transport), 2008 FC 17, the Federal Court considered the appropriate standard to be used by an appeal panel of the Tribunal when examining a review determination made by a Tribunal member. The Federal Court held that an appeal panel owes deference to the Tribunal Member when conducting a review of questions of fact and credibility. However, where issues of law are concerned, no deference is owed to a reviewing member and an appeal panel may make its own findings.

B. Issue 2 – What is the scope of the Tribunal's ability to award costs?

[36] The Review Member held that the Tribunal's capacity to award costs is limited to the instances enumerated in subsection 19(1) of the TATC Act. While the Minister supports this finding, the Appellant argues that the Tribunal's jurisdiction in this regard is expansive and is not limited simply to the situations listed in subsection 19(1).

(1) Statutory Interpretation

[37] The Appeal Panel notes that the wording of the section makes it clear that an award of costs is intended to be at the Tribunal's disposal in certain instances where a party's behavior has undermined the Tribunal process. An example of undermining the Tribunal process is where the behavior of a party is contrary to the nature of the Tribunal, which is tasked with addressing the matters before it “as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit”, pursuant to subsection 15(1) of the TATC Act. The Appeal Panel agrees with the Review Member's finding that costs in the Tribunal context are a method of discouraging the behaviours set out in subsection 19(1) of the TATC Act, rather than an incident of success before the Tribunal.

[38] In following the principles of statutory interpretation, the Appeal Panel notes that the context, intent, and wording of subsection 19(1) of the TATC Act point to a limited capacity to award costs. The Appeal Panel further notes that a proper examination of the statute in this instance is vital, as the Tribunal is a creature of statute and may only exercise the powers given to it through statute.

[39] While the Appellant would ask the Appeal Panel to take a permissive approach to the first six words of subsection 19(1), “the Tribunal may award any costs,” to do so would require taking these words out of the context in which they are written. Indeed, while subsection 19(1) allows the Tribunal to award both costs and expenses, the wording and context of the section make it clear that Parliament intended an award of costs and/or expenses to be a possibility only within the bounds enumerated by statute. It is only in considering this provision as a whole that the Tribunal may correctly ascertain the intent of Parliament in creating this section. As correctly noted by the Minister, examining the first six words of the section separately from the rest of the section would be to ignore the wording and intent of the section as a whole.

[40] The Appellant has argued that if Parliament had intended for the Tribunal to have a limited jurisdiction with regard to costs in this instance, then it would have clearly done so. The Appeal Panel is in agreement, and notes that a complete reading of this section demonstrates Parliament's intent to limit an award of costs to situations where it is necessary to penalize a party for poor conduct before the Tribunal.

[41] This feature is not unique to the Tribunal. Indeed, in Human Rights Commission, the Supreme Courtcanvasses legislation that has a limited jurisdiction—similar to that of the Tribunal—to award costs in order to penalize poor conduct.

(2) Tribunal Precedent

[42] The Tribunal conducted an examination of its capacity to award costs in Butterfield. This decision cautions that an overly broad interpretation of the Tribunal's ability to award costs could negatively impact applicants coming before the Tribunal and the Tribunal process itself. In her Ruling, the Review Member echoed the concern raised by the Appeal Panel in Butterfield, noting that no person should be deterred from seeking a Tribunal review out of a concern that costs may be awarded against them. The Appeal Panel is also cognizant of the other risks noted in Butterfield associated with Appellant's expansive interpretation of the TATC Act, including the Minister seeking costs when successful in a Tribunal Hearing, as well as Tribunal proceedings becoming more formal, more costly, and lengthier. These consequences are in direct conflict with the informal, expeditious, and fair hearings the Tribunal is mandated to provide.

[43] The Appeal Panel finds that its legal analysis on the Tribunal's jurisdiction to award costs is in line with the Review Member's analysis on this point. As such, the Appeal Panel holds that the Review Member's findings on this point should be upheld.

(3) Award of Costs Pursuant to the Charter

[44] The Appellant argues that he should be entitled to costs pursuant to section 24 of the Charter in addition to costs under subsection 19(1) of the TATC Act. The Appellant contends that the Charter is engaged in this instance because the Review Member's Determination favours the rule of law, and as such a remedy may be granted pursuant to the Charter.

[45] However, the Appeal Panel notes that the Review Member clearly stated in her Ruling that the Determination was not made on the basis of a Charter or constitutional argument. The Appeal Panel is in agreement with the Minister that a remedy under the Charter is only available in situations where there has been a Charter breach, and that no Charter breach was demonstrated in this instance.

C. Issue 3 – Was the charge against Mr. Kipke frivolous or vexatious?

[46] The Appellant submits that no genuine issue existed in this case, and that the charge against Mr. Kipke was simply laid to exert influence over helicopter operators and the First Nations. The Minister, however, submits that the issue before the Tribunal was to examine and apply the relevant criteria in order to determine whether a community is a town for the purposes of the CARs. The Review Member determined that the matter before the Tribunal could not be considered frivolous or vexatious as it was an area of law that had been previously unsettled.

[47] It is clear to the Appeal Panel that this case might have been difficult for the Minister to prove. However, the threshold for frivolous and vexatious is high, and the mere fact that the Minister's burden is a difficult one is not enough to meet this threshold.

[48] In her Ruling, the Review Member discussed that the Review Determination enumerated the criteria to consider in deciding whether a community is a town pursuant to the CARs, and noted that this issue had previously been unsettled. The Review Member also considered the Appellant's allegations of the charge against Mr. Kipke being vexatious, but found that such a finding “ignores the findings in paragraphs [234] and [235] of the Determination….”

[49] The crux of this case was the determination of whether Little Grand Rapids was a town pursuant to the CARs. While the Appellant argues that this was not a genuine issue, the Appeal Panel notes that the Review Member was required to identify what criteria to consider in making such an evaluation, and then to apply those criteria to Little Grand Rapids. As such, the issue before the Tribunal was not frivolous and vexatious, but rather was a determination on what constitutes a town pursuant to the CARs, and then applying those criteria to the case at hand.

[50] The Review Member also considered the Appellant's allegation of vexatiousness as ignoring the findings of paragraphs [234] and [235] of the Determination, which concluded that the charge against Mr. Kipke was not related to the alleged initiative of exerting pressure on certain Indian Reserves to establish heliports.

[51] Nevertheless, it is incumbent on the Appeal Panel to conduct its own examination of the evidence to determine if it suggests that the Tribunal was seized of this matter for vexatious reasons. Black's Law Dictionary, 8th ed., defines vexatious as “without reasonable or probable cause or excuse; harassing; annoying.” In this instance, the Appellant attempted to argue that the charge against Mr. Kipke was vexatious, and also that the issue before the Tribunal was vexatious.

[52] The Appeal Panel notes that the evidence before it demonstrates that the initial charge against Mr. Kipke was not vexatious, and subsequently, that the charge against Mr. Kipke resulted in a Review Hearing that decided an issue that had not previously been determined.

[53] In summary, the Appeal Panel agrees with the Review Member that the charge against Mr. Kipke was not frivolous or vexatious. Moreover, the Appeal Panel also agrees with the Review Member that the issue before the Tribunal in this instance was neither frivolous nor vexatious, but rather addressed an issue that had been previously unsettled.

D. Issue 4 - Are costs appropriate in this case?

[54] The Appeal Panel has determined that an award of costs pursuant to the TATC Act is only possible in the circumstances enumerated in subsection 19(1). The Appeal Panel has also determined that the charge against Mr. Kipke was not frivolous or vexatious. As the other two provisions listed in subsection 19(1) do not apply to the case at hand, the Appeal Panel finds that costs are not appropriate in this instance.

VIII. DECISION

[55] The Appellant's Appeal on the issue of costs is dismissed.

April 23, 2013

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

Dr. Alexander Phillips, Member       

Concurred By: Richard F. Willems, Member